Professional Documents
Culture Documents
Balane Wills
Balane Wills
Balane Wills
Based on “Jottings and Jurisprudence on the Law on However, Philippine procedural law, as influenced
Succession” by Prof. Balane and Cases according to the by the common-law system, lays down a different
2006 Syllabus of Justice Hofileña method for the payment of money debts, as found
in Rules 88 to 90 of the Rules of Court. It is only
AFTER the debts are paid that the residue of
the estate is distributed among the successors.
CHAPTER 1 Rule 90, Sec1 provides for the When the Order for the
GENERAL PROVISIONS Distribution of Residue is made.
According to the rule, when the debts, funeral
charges and expenses of administration, the
allowance to the widow and the inheritance tax
have all been paid, that is the only time that the
ART. 774. Succession is a mode of acquisition by court shall assign the RESIDUE of the estate to
virtue of which the property, rights and persons entitled to it.
obligations to the extent of the value of the The rule also provides that there shall be no
inheritance, of a person are transmitted distribution until the payment of the obligations
through his death to another or others either enumerated above, have been made or provided
by his will or by operation of law. for. However, if the distributees give a bond for the
payment of the said obligations within such time
The Code has simplified the concept of succession and and of such amount as fixed by the court, the
treats it simply as one of the 7 Modes of Acquiring distribution may be allowed.
Ownership as enumerated in Art712 of the NCC.
In our system therefore, money debts are, properly
7 MODES OF ACQUIRING OWNERSHIP speaking, not transmitted to the heir nor paid by
1. Occupation them. The estate pays them and it is only what is
2. Intellectual Creation left after the debts are paid [residue] that are
3. Law transmitted to the heirs.
4. Donation
5. Estate and Intestate Succession Justice JBL Reyes observed that Philippine rules of
6. Tradition Succession Mortis Causa proceed from an imperfect
7. Prescription blending of 3 Systems with Contrasting Philosophies –
1. GERMANIC CONCEPT OF UNIVERSAL HEIR
Overlap of Codal Definition with Art776 Heir directly and immediately steps into the
Article 774 talks of “property, rights and obligations shoes of the deceased upon the latter’s death
to the extent of the value of the inheritance.” At one single occasion [uno ictu]
Article 776 talks of the “inheritance” as including Without need of any formality
“all the property, rights and obligations of a person En mass
which are not extinguished by his death.” Automatic Subjective Novation
For clarity and better correlation, Prof. Balane 2. FRANCO-SPANISH SYSTEM
opines that Art774 should rather read: Acquisition of estate by universal title but only
“Succession is a mode of acquisition by virtue of which upon acceptance by the heir at any time, with
the inheritance of a person is transmitted through his death to retroactive effect.
another or others either by his will or by operation of law.” Acceptance may be made any time except
And the inheritance which is transmitted through a when the creditors or the court requires it be
person’s death is defined by Article 776 to include done within a certain time.
“all the property, rights and obligations of a person This is the system followed by the NCC, by
which are not extinguished by his death.” having the following features:
a) Universality of Property Rights and
What are Transmitted by Succession? Obligations
Only Transmissible Rights and Obligations. b) Transmitted from the moment of death
General Rule – if the right or obligation is strictly c) En bloc, as an entire mass
personal [intuitu personae], it is intransmissible; d) Transmitted even before judicial
otherwise it may be transmitted. recognition of heirship.
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This is the system followed by the Rules of administrator or personal representative until after
Court, in that: settlement of the claims against the estate?
a) Executor or administrator has possession
and management of the estate as long RESULT of these divergent rules – Creditors must now
as necessary for the payment of debts pursue their claims during the settlement proceedings
and expenses of administration, with and not against the heirs individually.
authority to exercise the right of
disposition. CASE
b) Section 3 Rule 87 – action to recover title Union Bank v. Santibañez
or possession of lands in the hands of
the executor or administrator can be - On May 31, 1980, First Country Credit Corporation (FCCC)
maintained by the heir only upon the and Efraim M. Santibanez entered into a loan agreement in
order of the Court assigning such land to the amount of P128,000 which was intended for the
the heir or devisee. payment of the purchase price of 1 unit of a tractor. In view
c) Section 1 Rule 90 – heirs may recover of this, Efraim and his son, Edmund executed a promissory
their share only upon: note in favor of FCCC.
- On Dec. 13, 1980, FCCC and Efraim entered into another
Payment of debts, expenses
similar loan agreement which was intended to pay the
and taxes
balance of the purchase price of another unit of a tractor.
Hearing conducted by the court And again, father and son executed a promissory note for
Court assigns the residue of the the said amount in favor of FCCC.
estate to the heirs. - However, sometime in Feb 1981, Efraim died, leaving a
holographic will and subsequently testate proceedings were
As a result of the blending of these 3 systems, JBL commenced before the RTC of Iloilo with Edmund being
Reyes says that we are thus faced with divergent, if not appointed as the special administrator of the estate of the
contradictory principles. decedent.
Do the successors acquire the WHOLE of the - During the pendency of the testate proceedings, Edmund
transmissible assets and liabilities of the decedent? and his sister, Florence Santibanez Ariola, executed a joint
Art774 – by virtue of succession the agreement on July 22, 1981 wherein they agreed to divide
property, rights and obligations, to the between themselves and take possession of the 3 tractors; 2
extent of the value of the inheritance of a for Edmund and 1 for Florence, each of them to assume
person, are transmitted by and at the indebtedness of their late father to FCCC.
moment of his death, implying a transfer - On August 20, 1981 a deed of assignment with assumption
of liabilities was executed by and between FCCC and Union
at that instant of the totality or universality
Savings and Mortgage Bank, wherein FCCC as the
of assets and liabilities. assignor, assigned all its assets and liabilities to Union
Savings and Mortgage Bank.
Do the successors only acquire the RESIDUUM - Not long after, demand letter for the settlement of the
remaining after payment of the debts, as implied by account were sent by Union Bank to Edmund but the latter
the Rules of Court? refused to pay. Thus Union Bank filed a complaint for sum of
Art1057 – within 30 days after the court money against the Edmund and Florence before the RTC of
has issued an order for the distribution of Makati.
the estate in accordance with the RoC, - However the case was dismissed. The lower court said that
the heirs, devisees and legatees shall the claim should have been filed with the probate court were
signify to the court having jurisdiction, the testate estate of Efraim was pending. Furthermore, the
whether they accept or repudiate the agreement was void considering that the probate court did
inheritance. not approve the agreement and no valid partition until after
The order of distribution under the RoC is the will has been probated.
issued only after the debts, taxes and - Also, the list of assets and liabilities of Union Bank did not
clearly refer to the decedent’s account. Also, it was
administration expenses have been paid;
contended that the obligation of the deceased had passed to
hence it is arguable that the acceptance his legitimate children and heirs already, in this case
can no longer refer to assets already Edmund and Efraim. CA affirmed RTC decision.
disposed of by the administrator, but must - Hence this appeal.
be limited to the net residue. WON the partition in the Agreement executed by the heirs is
But if title vests in the heir as of the death valid.
of the decedent then the acceptance of - No, there can be no valid partition among the heirs until after
the heir becomes entirely superfluous, the will has been probated by the probate court. This is
and the law should limit itself to regulating specially because when the joint agreement executed by
the effects the effects of a repudiation by Edmund and Florence partitioning the tractors among
an heir or legatee, and its retroactive themselves were executed, there was already a pending
effect. proceeding for the probate of their late father’s holographic
will covering the said tractors. Thus the probate court had
Or do the successors acquire only the NAKED already acquired jurisdiction over the said tractors which
TITLE at the death of the predecessor, but with they can’t be divested of. Any extrajudicial agreement needs
possession or enjoyment vested in the court approval.
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WON the heirs’ assumption of the indebtedness of the of the undertaking of the guarantor (Hemady), since the
deceased is valid. were not liabilities incurred after the execution of the
- No, the assumption of the indebtedness of the decedent by counterbonds; and (2) that “whatever losses may occur after
Edmund and Florence is not binding. Such assumption was Hemady’s death, are not chargeable to his estate, because
conditioned upon the agreement above. Hence, when the upon his death he ceased to be guarantor.”
agreement of partition between Edmund and Florence was
invalidated, then the assumption of the indebtedness cannot Whether losses are chargeable to Hemady’s Estate.
be given and force and effect. Also, the court should have
filed it money claim against the decedent’s estate in the - YES. While in our successional system the responsibility of
probate court. Furthermore, it cannot go after Florence for the heirs for the debts of their decedent cannot exceed the
she took no part in the documents related to the tractors, value of the inheritance they receive from him, the principle
specifically the promissory notes and the continuing remains intact that these heirs succeed not only to the rights
guaranty agreement; they should have gone after Edmund of the deceased but also to his obligations.
being a co-signatory to the promissory notes and guaranty. - Under the CC, the heirs, by virtue of the rights of succession
are subrogated to all the rights and obligations of the
WON the Union Bank can hold the heirs liable on the deceased and cannot be regarded as third parties with
obligation of the deceased. respect to a contract to which the deceased was a party,
- No, Union Bank cannot hold the heirs liable on the obligation touching the estate of the deceased.
of the deceased because it had not sufficiently shown that it - By contract, the articles of the Civil Code that regulate
is the successor-in-interest of the Union Savings and guaranty or suretyship contain no provision that the guaranty
Mortgage Bank to which the FCCC assigned its assets and is extinguished upon the death of the guarantor or the
liabilities. Furthermore, the documentary evidence clearly surety.
reflects that the parties in the deed of assignment with - Although Art. 2056 requires that one who is required to
assumption of liabilities were the FCCC, and the Union furnish a guarantor must present a person who possesses
Savings and Mortgage Bank, with the conformity of Bancom integrity, capacity to bind himself, and sufficient property to
Philippine Holdings, Inc. Nowhere can the participation answer for the obligation which he guarantees, it will be
therein of Union Bank as a party can be found. As a result, noted that the law requires these qualities to be present only
Union Bank has no personality to file the complaint and at the time of the perfection of the contract of guaranty
therefore cannot hold the heirs liable for the obligation of the - The contract of suretyship entered into by K.H. Hemady in
deceased. favor of Luzon Surety not being rendered intransmissible
due to the nature of the undertaking, nor by the stipulations
of the contracts themselves, nor by provision of law, his
In a sense, it can be said that even money debts are eventual liability thereunder necessarily passed upon his
transmitted to and paid for by the heirs, but this would death to his heirs. The contracts, therefore, give rise to
be by mere indirection – contingent claims provable against his estate.
Because whatever payment is thus made from the - The SC reversed the order of the lower court and instead
estate is ultimately a payment by the heirs and ordered the case be remanded to the CFI.
- The general rule is that a party’s contractual rights and
distributes, since the amount of the paid claim in
obligations are transmissible to the successors.
fact diminishes or reduces the shares that the heirs
- Art. 1311 of NCC: Contracts take effect only as between the
would have been entitled to receive. parties, their assigns and heirs, except in the case where the
rights and obligations arising from the contract are not
BUT only the payment of MONEY DEBTS has been transmissible by their nature, or by stipulation or by provision
affected by the Rules of Court. The transmission of of law.
other obligations not by nature personal follows the rule - Art. 774 of NCC: Succession is a mode of acquisition by
in Art774 and is transmitted by succession. virtue of which the property, rights and obligations to the
extent of the value of the inheritance of a person are
transmitted through his death to another or other either by
CASE his will or by operation of law.
- Art. 776 of NCC: The inheritance includes all the property,
Estate of K.H. Hemady v. Luzon Surety rights and obligations of a person which are not
extinguished by his death.
- Luzon Surety filed a claim against the Estate based on 20 - The binding effect of contracts upon the heirs of the
different indemnity agreements or counter bonds, each deceased party is not altered by the provision in the Rules of
subscribed by a distinct principal and by the deceased K.H. Court that money debts of a deceased must be liquidated
Hemady, a surety solidary guarantor in all of them, in and paid from the estate before the residue is distributed
consideration of Luzon Surety’s of having guaranteed, the among said heirs. The reasons is that whatever payment is
various principals in favor of different creditors. made from the estate is ultimately a payment by the heirs,
- Luzon Surety also prayed for allowance, as a contingent since the amount of the paid claim in fact diminishes or
claim, of the value of the 20 bonds it had executed in reduces the shares that the heirs would have been entitled
consideration of the counterbonds, and further asked for to receive.
judgment for the unpaid premiums and documentary stamps
affixed to the bonds with 12% interest.
- Before the answer was filed, the lower court dismissed the
claims of Luzon Surety, on two grounds: (1) that the
premiums due and cost of documentary stamps were not
contemplated under the indemnity agreements to be a part
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- Aniceto Yanes owned a parcel of land identified as Lot 773 It is unfortunate that the Code does not use the term
in Negros Occidental. He was survived by his children, “Intestate” to refer to a decedent who died without a will,
Rufino, Felipe, and Teodora. This would have prevented the ambiguity now inherent
- Aniceto left his children with Lots 773 and 823. in the term “decedent”
- Teodora cultivated part of Lot 823.
- Rufino and his children left the province to settle in other
places as a result of the outbreak of WWII.
- After the liberation, Rufino’s children went back to the land ART. 776. The inheritance includes all the
to get the their share in the sugar produce. They were property, rights and obligations of a person
informed that Santiago already owned Lot 773, and had the which are not extinguished by his death.
corresponding TCTs.
- Santiago sold the land to Fuentabella. Overlap of Codal Definition with Art776
- After Fuentabella died, the administratrix of his estate Article 774 talks of “property, rights and obligations
(Arsenia) filed a motion requesting authority to sell Lot 773
to the extent of the value of the inheritance.”
(already subdivided to Lots 773-A and 773-B).
Article 776 talks of the “inheritance” as including
- The motion was granted and Arsenia sold the lands to
Alvarez. “all the property, rights and obligations of a person
- Teodora and Rufino’s children (Yaneses) filed a complaint in which are not extinguished by his death.”
CFI Negros Occidental for the “return” of the possession and
ownership of Lots 773 and 823. For clarity and better correlation, Prof. Balane
- During the pendency of the case, Alvarez sold the land to opines that Art774 should rather read:
Siason. “Succession is a mode of acquisition by virtue of which
- CFI ordered Alvarez to reconvey Lots 773 and 823 to the the inheritance of a person is transmitted through his death to
Yaneses. another or others either by his will or by operation of law.”
- Execution of the decision was unsuccessful with regard to
And the inheritance which is transmitted through a
Lot 773 as it was already in the name of Siason.
- Another action was instituted by the Yaneses, this time person’s death is defined by Article 776 to include “all
impleading Siason. the property, rights and obligations of a person which
- Siason claims that he was a purchaser in good faith and are not extinguished by his death.”
thus, he has title to Lot 773.
- CFI dismissed the complaint against Siason and ordered the
children of Alvarez to solidarily pay the Yaneses Php ART. 777. The rights to the succession are
20,000, representing the actual value of Lot 773. transmitted from the moment of the death of
WON it was correctly ruled that the children of Alvarez be
the decedent.
made responsible for the liability of their father (Alvarez).
Time of Vesting of Successional Right
- YES. The rights and obligations of the deceased are
generally transmissible to his legitimate children and heirs. Prof. Balane says the terminology used in this article is
- As heirs of the late Alvarez, the children cannot escape the “infelicitous” because the right to the succession is not
consequences of their father’s transaction, which gave rise transmitted; but rather vested.
to the present claim for damages. To say that it is transmitted upon death implies that
- The children are, however, liable only to the extent of the before the decedent’s death, the right to the
value of their inheritance. succession was possessed by the decedent [which
- Art. 774, NCC: Succession is a mode of acquisition by virtue is absurd].
of which the property, rights and obligations to the extent of To say that it vests upon death implies that before
the value of the inheritance, of a person are transmitted the decedent’s death the right was merely inchoate
through his death to another or others either by his will or by [which is correct].
operation of law.
- Art. 776, NCC: The inheritance includes all the property,
rights and obligations of a person which are not extinguished THE LAW PRESUMES THAT THE PERSON
by his death. SUCCEEDING –
1. Has a right to succeed by
a) Legitime [compulsory succession],
ART. 775. In this Title, “decedent” is the general b) Will [testamentary succession], or
term applied to the person whose property is c) Law [intestate succession]
transmitted through succession, whether or 2. Has the legal capacity to succeed, and
not he left a will. If he left a will, he is also 3. Accepts the successional portion
called the testator.
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ART. 778. Succession may be: “Donations of future property shall be governed by
(1) Testamentary the provisions on testamentary succession and the
(2) Legal or Intestate, or formalities of wills.”
(3) Mixed
Since under the provision, any donation of
future property between the affianced couple
ART. 779. Testamentary succession is that which is to be governed by the rules of testamentary
results from the designation of an heir, made succession and the forms of wills, contractual
in a will executed in the form prescribed by succession no longer exists in this jurisdiction.
law. Such a donation becomes an ordinary case of
testamentary succession.
ART. 780. Mixed succession is that effected partly
by will and partly by operation of law. FOUR KINDS OF SUCCESSION ACCORDING TO
IMPORTANCE [Prof. Balane]
1. COMPULSORY
3 KINDS OF SUCCESSION ACCDG TO ART. 778:
1. TESTAMENTARY Succession to the legitime
That which results from the designation of Prevails over all other kinds
an heir, made in a will. 2. TESTAMENTARY [Art. 779]
2. LEGAL OR INTESTATE Succession by will
Lost definition: “takes place by operation
3. INTESTATE
of law in the absence of a valid will.”
Succession in default of a will
3. MIXED
That effected partly by will and partly by 4. MIXED [Art. 780]
operation of law. Not a distinct kind really, but a
combination of any two or all of the first
Some observations – three.
Enumeration cannot satisfactorily accommodate
the system of legitimes.
Legal or intestate succession operates only in ART. 781. The inheritance of a person includes
default of a will [Arts960 and 961], while the not only the property and the transmissible
legitime operates whether or not there is a
rights and obligations existing at the time of
will, in fact prevails over a will.
his death, but also those which have accrued
There are instances where the rules on
legitime [Arts 887..] operate, to the exclusion thereto since the opening of the succession.
of the rules on intestacy [Arts 960..]
It is therefore best for clarity, to classify Article 781 is best deleted; it serves only to confuse.
succession to the legitime as a separate and The inheritance includes only those things enumerated
distinct kind of succession, which, for want of in Article 776. Whatever accrues thereto after the
a better term, can be denominated decedent’s death [which is when the succession opens]
compulsory succession. belongs to the heir, not by virtue of succession, but by
virtue of ownership.
Until the effectivity of the Family Code, there was
To say, as Art781 does, that accruals to the inheritance
one exceptional case of succession by contract
[contractual succession] found in Article 130 of Civil after the decedent’s death are included in the
Code. inheritance is to negate the principle in Art777 that
ART 130. The future spouses may give each other transmission takes place precisely at the moment of
in their marriage settlements as much as one-fifth of their death.
present property, and with respect to their future property, Once the decedent dies and the heir inherits, the
only in the event of death, to the extent laid down by the fruits of the property or inheritance belongs to the
provisions of this Code referring to testamentary heir by accession, and not by succession. This is
succession. so even if the heir does not actually receive the
inheritance.
Art781 should have left well enough alone.
Donations propter nuptias of future property,
made by one of the future spouses to the
Question – If the assets left behind by the decedent are
other, took effect mortis cause, and had only
not sufficient to pay the debts, may the creditors claims
to be done in the marriage settlements, which
were governed only by the Statute of Frauds. the fruits produced by the decedent’s property after his
death? Or do these fruits pertain to the heirs?
It was the only instance of Contractual
But wouldn’t the debts be deducted from the estate
Succession in our civil law.
first before the properties are distributed to the
This has been eliminated by the Family Code
heirs?
in Article 84 paragraph 2:
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by the death of the party when the other party has a property
interest in the subject matter of the contract.
CHARACTERISTICS OF WILLS
1. PURELY PERSONAL
Articles 784, 785 and 787
CHAPTER 2
2. FREE AND INTELLIGENT
TESTAMENTARY SUCCESSION Article 839
The testator’s consent should not be vitiated by
the causes mentioned in Article 839
paragraphs 2-6 on Insanity, Violence,
SECTION 1 – WILLS Intimidation, Undue Influence, Fraud and
Mistake.
Subsection 1 – Wills in General 3. SOLEMN AND FORMAL
Articles 804-814 and 820-821
The requirements of form depend on whether
ART. 783. A will is an act whereby a person is the will is attested or holographic.
permitted, with the formalities prescribed by Articles 805-808 and 820-821 govern attested
law, to control to a certain degree the wills. Articles 810-814 govern holographic wills.
Article 804 applies to both.
disposition of his estate, to take effect after
his death. 4. REVOCABLE AND AMBULATORY
Article 828
Operative Words in the Definition 5. MORTIS CAUSA
1. ACT Article 783
The definition of a will as an act is too broad This is a necessary consequence of Articles
and should have been more clearly delimited 774 and 777.
with a more specific term such as instrument
or document, in view of the provision of 6. INDIVIDUAL
Art804 that “every will must be in writing.” Article 818
Joint wills are prohibited in this jurisdiction.
NUNCUPATIVE or oral wills are not
recognized in our Code, unlike the Spanish 7. EXECUTED WITH ANIMUS TESTANDI
Civil Code wherein military wills could be oral. This characteristic is implied in Article 783
Rizal’s valedictory poem “Ultimo Adios” was
2. PERMITTED
not a will. An instrument which merely
Will-making is purely statutory. expresses a last wish as a thought or advice
3. FORMALITIES PRESCRIBED BY LAW but does not contain a disposition of property
The requirement of form prescribed and was not executed with animus testandi,
cannot be legally considered a will.
respectively for attested and holographic wills.
8. EXECUTED WITH TESTAMENTARY CAPACITY
4. CONTROL TO A CERTAIN DEGREE
Articles 796 – 803 on testamentary capacity
The testator’s power of testamentary and intent
disposition is limited by the rules on legitimes.
9. UNILATERAL
5. AFTER HIS DEATH This characteristic is implied in Article 783
Testamentary succession, like all other kinds
of succession in our Code, is mortis causa. 10. DISPOSITIVE OF PROPERTY
Article 783 seems to consider the disposition of
the testator’s estate mortis causa as the
purpose of will-making.
11. STATUTORY
Will-making is a permitted by statute.
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provided by law, such as the acknowledgment of a property and rights and declares or complies with duties to
natural child or the order that the patria potestas of the take effect after his death. The bequest or devise must
widow shall continue after her remarriage, can be give pertain to the testator.
effect even without probating the will. - In this case, the savings account involved was in the nature
of conjugal funds.
Questions - Since it was not shown that the funds belonged exclusively
Would a document merely appointing an executor, to one party, it is presumed to be conjugal.
- It is also not a donation inter vivos because it was to take
not containing any dispositive provision, have to
effect after the death of one party. It is also not a donation
comply with the formal requirements of a will in
between spouses because it involved no conveyance of a
order to be effective? Would such a document spouse’s own properties to the other.
have to be probated? - It was an error to include the savings account in the
Justice Hofilena says NO, because there inventory of the deceased’s assets because it is the
is no disposition and such appointment separate property of Romarico.
would not be under the category of a will. - Thus, Romarico had the right to claim reimbursement.
Therefore, the formal requirements of a - A will is a personal, solemn, revocable and free act by which
will do not apply. a capacitated person disposes of his property and rights and
Would a document containing only a disinheriting declares or complies with duties to take effect after his
clause have to be in the form of a will and be death.
probated? [Article 916] - Survivorship agreements are permitted by the NCC.
YES. According to Art916, disinheritance However, its operation or effect must not be violative of the
can be effected only through a will law (i.e. used as a cloak to hide an inofficious donation or to
wherein the legal cause therefore shall be transfer property in fraud of creditors or to defeat the
specified. legitime of a forced heir).
A valid disinheritance is in effect a
disposition of the property of the testator
in favor of those who would succeed in
the absence of the disinherited heir.
Unless the will is probated, the ART. 784. The making of a will is a strictly
disinheritance cannot be given effect. personal act; it cannot be left in whole or in
part to the discretion of a third person, or
CASES accomplished through the instrumentality of
Vitug v. CA an agent or attorney.
- Romarico Vitug and Nenita Alonte were co-administrators of This provision gives the will its purely personal
Dolores Vitug’s (deceased) estate. Rowena Corona was the
character.
executrix.
- Romarico, the deceased’s husband, filed a motion with the
NON-DELEGABILITY OF WILL-MAKING –
probate court asking for authority to sell certain shares of
It is the exercise of the disposing power that
stock and real properties belonging to the estate to cover
alleged advances to the estate, which he claimed as cannot be delegated.
personal funds. Obviously, mechanical aspects, such as typing, do
- The advances were used to pay estate taxes. not fall within the prohibition.
- Corona opposed the motion on ground that the advances
came from a savings account which formed part of the
conjugal partnership properties and is part of the estate. ART. 785. The duration or efficacy of the
Thus, there was no ground for reimbursement. designation of heirs, devisees or legatees, or
- Romarico claims that the funds are his exclusive property,
having been acquired through a survivorship agreement
the determination of the portions which they
executed with his late wife and the bank. are to take, when referred to by name, cannot
- The agreement stated that after the death of either one of be left to the discretion of a third person.
the spouses, the savings account shall belong to and be the
sole property of the survivor, and shall be payable to and What Constitute the Essence of Will-Making or the
collectible or withdrawable by such survivor. Exercise of the Disposing Power? The ff are non-
- The lower court upheld the validity of the agreement and delegable:
granted the motion to sell. 1. The designation of heirs, devisees or legatees
- CA reversed stating that the survivorship agreement 2. The duration of efficacy of such designation,
constitutes a conveyance mortis causa which did not comply
including such things as conditions, terms,
with the formalities of a valid will. Assuming that it was a
substitutions;
donation inter vivos, it is a prohibited donation (donation
3. The determination of the portions they are to
between spouses).
- WON the survivorship agreement was valid. receive.
- YES.
- The conveyance is not mortis causa, which should be
embodied in a will. A will is a personal, solemn, revocable
and free act by which a capacitated person disposes of his
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ART. 786. The testator may entrust to a third Case for Arts. 783-787
person the distribution of specific property or
sums of money that he may leave in general Del Rosario v. Del Rosario
to specified classes or causes, and also the
- Don Nicolas left a will awarding parts of his estate to his
designation of the persons, institutions or nephews, Don Enrique and plaintiff, Don Ramon subject to
establishments to which such property or certain conditions. (See case page 322)
sums are to be given or applied. - He also left a part of his estate to his siblings, one of which
is Dona Luisa. And upon the latter’s death, her share shall
Exception to the Rule on Non-Delegability of Will- be divided between her two nephews after P1,000 has been
Making. Without this provision, the things allowed to be given to Dona Luisa’s male children.
delegated here would be non-delegable. - Doña Honorata, Don Nicolas’ wife, left her estate to his
husband. Upon the husband’s death, it shall be passed on to
TWO THINGS MUST BE DETERMINED BY THE her husband’s siblings. However, upon the death of her
TESTATOR – sister-in-law, Dona Luisa, same provisions shall apply as
what is stated in her husband’s will.
1. The property or amount of money to be given;
- Plaintiff now institutes this present case against the
and
executor, who is one of his uncles, Don Clemente. He seeks
2. The class or the cause to be benefited. to be entitled to a certain part of the share of the estates left
to Dona Luisa during her life, and he asks that the executor
TWO THINGS MAY BE DELEGATED BY THE be directed to render accounts and to proceed to the
TESTATOR – partition of the estate.
1. The designation of persons, institutions, or
establishments within the class or cause; Whether or not he is entitled to any share of the estate left by
2. The manner of distribution the spouses.
- Plaintiff is not entitled to any allowance under the will of Don
Question – Suppose the testator specified the recipients Nicolas because:
by specific designation but left to the 3rd person the a. He is only allowed such amount if widow
determination of the sharing, ex. “I leave P500,000 for remarries and he is still continuing studies,
the PNRC, the SPCA, and the Tala Leprosarium, to be which are not present in this case.
distributed among these institutions in such proportions b. His interest in the share of Dona Luisa in Don
as my executor may determine.” Valid? Nicolas’ will was given to him as an heir and not
One View – Article 785 seems to prohibit this, as a legatee.
- He is not entitled to live in the widow’s house because such
because the recipients are referred to by name and
was terminated upon the widow’s death.
therefore the portions they are to take must be
- He is entitled to be paid the sum of P1500 given to Don
determined by the testator. Article 786 applies only Enrique in addition to the P1500 pesos already received by
where the testator merely specifies the class or the plaintiff under the 9th clause of Dona Honorata’s will
cause but not the specific recipients. because:
Contra – This actually involves a lesser discretion a. The will specifically awarded the said amounts
for the 3rd person than the instances allowed by to him as a legatee and the fact that they were
Article 786 and should be allowed. called natural sons of Don Clemente only serves
as a further description and needs no proof to be
given.
ART. 787. The testator may not make a b. By virtue of the right of accretion, plaintiff is also
entitled to the other P1500 share of Don Enrique
testamentary disposition in such manner that since the latter died before Don Honorata.
another person has to determine whether or - He is entitled to the share of the estate left by the will of
not it is to be operative. Dona Honorata to Dona Luisa during her life, after deducting
P1,000 because:
This rule is consistent with, and reinforces, the purely a. The share of plaintiff from Dona Luisa’s share is
person character of a will, laid down in Article 784. given to him whether or not Dona Luisa dies
This article should be interpreted rationally. It is not to before or after Dona Honorata.
be so interpreted as to make it clash with the principle b. His right in the share of Dona Luisa is expressly
expressed in Articles 1041-1057 of the NCC that the left to him as a legacy.
- The reservation of property in a will to the name of specific
heir is free to accept or reject the testamentary
persons shall be considered as a legacy.
disposition.
- Where the will authorizes the executor to pay the legacies,
What this article prohibits is the delegation to a 3rd
expressly or by natural inference, action will lie by the
person of the power to decide whether a disposition legatee against the executor to compel allowance and
should take effect or not. payment hereof. If the executor is not authorized, action will
lie against the heirs. An heir on the other hand, can maintain
no such action against the executor.
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b) Patent as to PROPERTY – “I
ART. 788. If a testamentary disposition admits of bequeath to my cousin Pacifico some
different interpretations, in case of doubt, that of my cars.”
In both cases, the ambiguity is evident
interpretation by which the disposition is to
from a reading of the testamentary
be operative shall be preferred.
provisions themselves; the ambiguity is
patent [patere – to be exposed]
Articles 788-794 lays down the rules of construction and
interpretation. HOW TO DEAL WITH AMBIGUITIES –
The underlying principle here is that testacy is preferred The provisions of this article do not make a
to intestacy, because the former is the express will of distinction in the solution of the problem of
the decedent whereas the latter is only his implied will. ambiguities – whether latent or patent.
In statutory construction, the canon is: “That the thing
Hence, the distinction between the 2 kinds
may rather be effective than be without effect.” of ambiguity is, in the light of the codal
provisions, an all but theoretical one.
A similar principle in contractual interpretation is found
in Art1373, which provides that “if some stipulation of
The ambiguity should, as far as possible, be
any contract should admit of several meanings, it shall
cleared up or resolved, in order to give effect to the
be understood as bearing that import which is most
testamentary disposition.
adequate to render it effectual.”
Based on principle that testacy is
preferred to intestacy.
ART. 789. When there is an imperfect description, Ambiguity may be resolved using any evidence
or when no person or property exactly admissible and relevant, excluding the oral
answers the description, mistakes and declarations of the testator as to his intention.
omissions must be corrected, of the error Reason for the statutory exclusion is that
appears from the context of the will or from a dead man cannot refute a tale.
extrinsic evidence, excluding the oral
declarations of the testator as to his
intention; and when an uncertainty arises ART. 790. The words of a will are to be taken in
upon the face of the will, as to the application their ordinary and grammatical sense, unless
of any of its provisions, the testator’s a clear intention to use them in another sense
intention is to be ascertained from the words can be gathered, and that other can be
of the will, taking into consideration the ascertained.
circumstances under which it was made, Technical words in a will are to be taken
excluding such oral declarations. in their technical sense, unless the context
clearly indicates a contrary intention, or
unless it satisfactorily appears that he was
2 KINDS OF AMBIGUITY REFERRED TO – unacquainted with such technical sense.
1. LATENT – not obvious on the face of the will
When there is an imperfect description or Similar rules are laid down in Rule 130 Sections 10 and
when no person or property exactly answers 14 of the Rules of Court –
the description Sec10. Interpretation of a writing according to its legal
a) Latent as to PERSON – “I institute to meaning – The language of a writing is to be interpreted according
¼ of my estate my first cousin Jose” to the legal meaning it bears in the place of its execution, unless the
and the testator has more than one parties intended otherwise.
first cousin named Jose.
b) Latent as to PROPERTY – “I devise Sec14. Peculiar signification of terms – The terms of a writing
to my cousin Pacifico my fishpond in are presumed to have been used in their primary and general
Roxas City” and the testator has application, but evidence is admissible to show that they have a
more than one fishpond in Roxas local, technical, or otherwise peculiar signification, and were so
City. used and understood in the particular instance, in which case the
agreement must be construed accordingly.
2. PATENT – obvious on the face of the will
When an uncertainty arises upon the face of In contractual interpretation, a similar principle is
the will, as to the application of any of its expressed in Article 1370 par1:
provisions Art1370. If the terms of a contract are clear and leave no
a) Patent as to PERSON – “I institute ¼ doubt upon the intention of the contracting parties, the literal
of my estate to some of my first meaning of its stipulations shall control.
cousins.
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ART. 791. The words of a will are to receive an Illustration – X executes a will in 1985 containing a
interpretation which will give to every legacy: “I give to M all my shares in BPI.” The testator
dies in 1990, owning at the time of his death ten times
expression some effect, rather than one
as many BPI shares as he did when he made the will.
which will render any of the expressions Under Article 793, the shares acquired after the
inoperative; and of two modes of interpreting will was executed are NOT included in the
a will, that is to be preferred which will legacy.
prevent intestacy.
Article 793 therefore departs from the codal
A similar rule is found in Rule 130 Sec11 of the RoC – philosophy of Articles 774 and 776 and constitutes
Sec11. Instrument construed so as to give effect to all an EXCEPTION to the concept of succession as
provisions – In the construction of an instrument where there are linked to death and rendered legally effective by
several provisions or particulars, such a construction is, if possible, death.
to be adopted as will give effect to all.
Prof. Balane suggests the provisions be reworded as:
In contractual interpretation, Articles 1373 and 1374 lay “Property acquired after the making of a will passes
down similar principles – thereby unless the contrary clearly appears from the
Art1373. If some stipulation of any contract should admit of words or the context of the will.”
several meanings, it shall be understood as bearing that import In the meantime, it is suggested that a liberal
which is most adequate to render it effectual. application of the article be allowed.
Art1374. The various stipulations of a contract shall be Can the word “expressly” in this article be
interpreted together, attributing to the doubtful one that sense which interpreted to mean “clearly” even if it might be
may result from all of them taken jointly. stretching a point?
ART. 792. The invalidity of one of several ART. 794. Every devise or legacy shall cover all
dispositions contained in a will does not the interest which the testator could device or
result in the invalidity of the other bequeath in the property disposed of, unless
dispositions, unless it is to be presumed that it clearly appears from the will that he
the testator would not have made such other intended to convey a less interest.
dispositions if the first invalid disposition had
not been made. This article should be read together with Art929, which
provides that “if the testator, heir, or legatee owns only
This article makes applicable to wills the a part of or an interest in the thing bequeathed, the
SEVERABILITY OR SEPARABILITY PRINCIPLE in legacy or devise shall be understood limited to such
statutory construction frequently expressly provided in a part or interest, unless the testator expressly declares
separability clause. that he gives the thing in its entirety.
The source of this article is Art2085 of the German Civil
Code which provides that the invalidity of one of several GENERAL RULE – in a legacy or devise the testator
dispositions contained in a will results in the invalidity of gives exactly the interest he has in the thing.
the other dispositions only if it is to be presumed that EXCEPTIONS – he can give a less interest [Art794] or a
the testator would not have made these if the invalid greater interest [Art929] than he has.
disposition had not been made.
In the latter case, if the person owning the interest
to be acquired does not wish to part with it, the
solution in Art931 can be applied wherein the
ART. 793. Property acquired after the making of a legatee or devisee shall be entitled only to the
will shall only pass thereby, as if the testator JUST VALUE OF THE INTEREST that should
had possessed it at the time of making the have been acquired.
will, should it expressly appear by the will
that such was his intention.
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Whether or not the provisions of the New Civil Code which divided if there be any foreseeable disagreements over the
allowed holographic wills may be applied to validate Fr. property;
Abadia’s will. - The same will also provided that should the wife forget to
- NO. No subsequent law with more liberal requirements or make a will, that it be complied with and fulfilled by his
which dispenses with such requirements as to execution brother Ramon Fable.
should be allowed to validate a defective will and thereby - The testator’s will, as recorded in the abovementioned is so
divest the heirs of their vested rights in the estate by clear and definite that in order duly to comply therewith, it
intestate succession. The general rule is that the Legislature needs but be determined who are the persons that must be
cannot validate void wills. considered as the legatees on account of their having
- Art. 795 of the New Civil Code provides: “The validity of a served and cared for the testator’s widow until their death.
will as to its form depends upon the observance of the law in - From a due examination of the evidence presented at the
force at the time it is made.” trial, those entitled are Encarnacion Gutierrez Calderon,
- The above provision weight of authority to the effect that the Filomena Calderon, Potenciana de la Cruz, Basilisa
validity of a will is to be judged not by the law in force at the Salteras, Candida Reyes, Benita Garcia, Maria and Josefa
time of the testator’s death or at the time the supposed will is Calderon and Petronilla Eugenio.
presented in court for probate or when the petition is - The minor children were also of service to the widow, and
decided by the court but at the time the instrument was should equally receive a pro-rate share on the property’s
executed. value. It was not only Petronila who had served the widow,
- The wishes of the testator about the disposition of his estate there were many others and she should not alone get the
among his heirs and among the legatees is given solemn property.
expression at the time the will is executed, and in reality, the - Since some of them did so, as proven by the record, the law
legacy or bequest then becomes a completed act. must be fulfilled in accordance with the tenor of the last will
- The position that subsequent statutes should be applied to of the testator.
validate wills defectively executed according to the law in - It is the settled rule that the intention and wishes of the
force at the time of execution is untenable. testator, when clearly expressed in his will, constitute the
- The reason for the above is that from the day of the death of fixed law of interpretation.
the testator, if he leaves a will, the title of the legatees and
devisees under it becomes a vested right, protected under Balanay v. Martinez
the due process clause of the constitution.
- Art. 795 of the New Civil Code provides: “The validity of a - Leodegaria Julian, in her will, partitioned her paraphernal as
will as to its form depends upon the observance of the law in well as all the conjugal properties as if they were all owned
force at the time it is made.” by her, disposing of her husband's one-half share, and
- The above provision weight of authority to the effect that the providing that the properties should not be divided during
validity of a will is to be judged not by the law in force at the her husband's lifetime but should remain intact and that the
time of the testator’s death or at the time the supposed will is legitimes should be paid in cash to be satisfied out of the
presented in court for probate or when the petition is fruits of the properties.
decided by the court but at the time the instrument was - Felix Balanay, Jr. filed a petition for the approval of his
executed. mother's will which was opposed by the husband and some
- No subsequent law with more liberal requirements or which of her children.
dispenses with such requirements as to execution should be - During the pendency of the probate proceedings petitioner
allowed to validate a defective will and thereby divest the submitted to the court a document showing his father's
heirs of their vested rights in the estate by intestate conformity to the testamentary distribution, renouncing his
succession. The general rule is that the Legislature cannot hereditary rights in favor of his children in deference to the
validate void wills. memory of his wife.
- The Court denied the opposition, set for hearing the probate
In re Estate of Calderon of the will and gave effect to the affidavit and conformity of
the surviving spouse.
- This is an appeal made by the attorneys for Basilla Salteras, - Meanwhile, a certain Atty. David Montaña, Sr. allegedly, in
Potenciana de la Cruz and Benigno Calderon, the latter as behalf of the petitioner, moved to dismiss the probate
the natural guardian of the minors Maria and Josefa proceedings and requested authority to proceed by intestate
Calderon from an order which directed that the administrator proceedings on the ground that the will was void (because
be authorized to make a conveyance of property, a house Leodegaria cannot validly dispose of her husband’s share) ,
and lot, situate in Binondo to Petronila Eugenio. which motion was granted by the probate court. The Court,
- The case questions on 1) How and what manner the however, did not abrogate its prior orders to proceed with
provisions made by the testator, the deceased Miguel Fable, the probate proceedings.
in clause 12 of his will should be complied with; and 2) Who - Petitioner impugned the order of dismissal claiming that Atty.
should receive pro rata the legacy specified in the said Montaña had no authority to ask for the dismissal of the
clause. petition for allowance of will and that the court erred in
- The said clause states that the property on Calle Analogue declaring the will void before resolving the question of its
will be left as legacy to his wife under the condition that with formal validity.
its revenue she shall care for and educate and assist during
her widowhood the children of their servants and the two Whether the probate court erred in passing upon the intrinsic
children of D. Lucas y Eugenio; validity of the will, before ruling on its allowance or formal
- In the same will, Miguel Fabie authorized her wife to provide validity, and in declaring it void.
in her will that property be delivered to the persons who may - NO. In view of certain unusual provisions of the will, which
have assisted and cared for her during her widowhood until are of dubious legality, and because of the motion to
her death and to sell the property so that the proceeds to be withdraw the petition for probate (which the lower court
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assumed to have been filed with the petitioner's estate should be distributed in the manner therein provided,
authorization), the trial court acted correctly in passing upon and it is incumbent upon the state that, if legally tenable,
the will's intrinsic validity even before its formal validity had such desire be given effect independent of the attitude of the
been established. parties affected thereby
- The probate of a will might become an idle ceremony if on - Testacy is favored. Doubts are resolved in favor of testacy
its face it appears to be intrinsically void. Where practical especially where the will evinces an intention on the part of
considerations demand that the intrinsic validity of the will be the testator to dispose of practically his whole estate.
passed upon, even before it is probated, the court should
meet the issue Bellis v. Bellis
Whether the court erred in converting the testate proceeding - Amos Bellis was a citizen of the State of Texas and of the
into an intestate proceeding notwithstanding the fact that in its United States.
order of June '8, 1973 it gave effect to the surviving husband's - By his first wife, he had 5 legitimate children; by his second
conformity to the will and to his renunciation of his hereditary wife, he had 3 legitimate children; and he had 3 illegitimate
rights which presumably included his one-half share of the children.
conjugal estate. - Amos executed a will in the Philippines, in which he
- YES. The rule is that "the invalidity of one of several specified how his estate will be divided and distributed.
dispositions contained in a will does not result in the - Subsequently, Amos died, a resident of Texas.
invalidity of the other dispositions, unless it is to he - His will was admitted to probate in the CFI of Manila.
presumed that the testator would not have made such other - The People’s Bank, as executor of will, paid all the bequests
dispositions if the first invalid disposition had not been included in Amos’ will.
made" (Art. 792, Civil Code). - Before closing its administration, the executor submitted its
- "Where some of the provisions of a will are valid and others final report and project of partition.
invalid, the valid parts will be upheld if they can be - However, 2 of Amos’ illegitimate children filed their
separated from the invalid without defeating the intention of oppositions to the project of partition on the ground that they
the testator or interfering with the general testamentary were deprived of their legitimes as illegitimate children and
scheme, or doing injustice to the beneficiaries" therefore compulsory heirs of the deceased.
- Void provisions in the will: - The CFI issued an order overruling the oppositions and
1. The statement of the testatrix that she owned the approving the executor’s final account, report and project
"southern half" of the conjugal lands is contrary to partition. The lower court, relying upon Art. 16 of the NCC,
law because, although she was a co-owner thereof, applied the national law of Amos, which is the Texas law,
her share was inchoate and pro indiviso which did not provide for legitimes.
2. that the properties of the testatrix should not be - The illegitimate children thus filed an Appeal.
divided among her heirs during her husband's lifetime
but should be kept intact and that the legitimes Whether this case falls under Art. 17 of the NCC.
should be paid in cash is contrary to article '080 of - NO.
the Civil Code - Appellants argue that their case falls under the
circumstances mentioned in the 3rd paragraph of Art. 17 in
Whether an heir may validly renounce his share relation to Art. 16 of the NCC. It argues that Art. 17 prevails
- YES. Felix Balanay, Sr. could validly renounce his hereditary as the exception to Art. 16.
rights and his one-half share of the conjugal partnership - The SC rule that appellants argument is incorrect.
(Arts. '79['] and '04', Civil Code) but insofar as said - It ruled that the change in the NCC shows that whatever
renunciation partakes of a donation of his hereditary rights public policy and good customs may be involved in our
and his one-half share in the conjugal estate (Art. '050['] Civil system of legitimes, Congress has not intended to extend
Code), it should be subject to the limitations prescribed in the same to the succession of foreign nationals. Congress
articles 750 and 752 of the Civil Code. A portion of the has specifically chose to leave the amount of successional
estate should be adjudicated to the widower for his support rights to the decedent’s national law.
and maintenance. Or at least his legitime should be
respected. Whether Philippine law should govern to Amos’ Philippine
- Generally, the probate of a will is mandatory and it is the estate.
duty of the court to pass first upon its formal validity except - NO. Appellants argued that Amos executed 2 wills – one to
in extreme cases where the will is on its face intrinsically govern his Texas estate and the other his Philippine estate –
void. arguing that he intended Philippine law to govern his
- A will is not rendered null and void by reason of the Philippine estate.
existence of some illegal or void provisions since the - The SC held that that a provision in a foreigner’s will to the
invalidity of one of several dispositions contained in a will effect that his properties shall be distributed in accordance
does not result in the invalidity of the other dispositions with Philippine law and not with his national law, is illegal
unless it is to be presumed that the testator would not have and void, for his national law cannot be ignored in regard to
made such other dispositions if the first invalid disposition those matters that Art. 16 of the NCC states said national
had not been made; law should govern.
- Where some provisions are valid and others invalid, the
valid provisions shall be upheld if they can be separated Which law must apply – Texas law or Philippine law?
from the invalid provisions without defeating the intention of - Texas law applies.
the testator or interfering with the general testamentary - The petitioners admit that Amos was a citizen of State of
scheme or doing injustice to the beneficiaries. Texas and that under the laws of Texas, there are no forced
- The very existence of a purported testament is in itself prima heirs of legitimes.
facie proof that the supposed testator has willed that his
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- Accordingly, since the intrinsic validity of the provision of the the probate of the will; but if the testator, one
will and the amount of successional rights are to be month, or less, before making his will was
determined under Texas law, the Philippine law on legitimes
publicly known to be insane, the person who
cannot be applied to the testacy of Amos.
- Art. 16: Real property as well as personal property is subject maintains the validity of the will must prove
ot the law of the country where it is situated. However, that the testator made it during a lucid
intestate and testamentary succession, both with respect to interval.
the order of succession and to the amount of successional
rights and to the intrinsic validity of testamentary provisions, ART. 801. Supervening incapacity does not
shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the
invalidate an effective will, nor is the will of an
nature of the property and regardless of the country wherein incapable validated by the supervening of
said property may be found. capacity.
- Art. 1039: Capacity to succeed is governed by the law of the
nation of the decedent. Articles 796-801 lay down the rules on testamentary
- Art. 17: Prohibitive laws concerning persons, their acts or capacity.
property, and those which have for their object public order, Testamentary Capacity – testamenti factio;
public policy and good customs shall not be rendered testamentifacción active, the legal capacity to make
ineffective by laws or judgments promulgated, or by a will.
determinations or conventions agreed upon in a foreign
Who has testamentary capacity? All NATURAL
country.
persons, unless disqualified by law. Juridical
- The decedent’s national law governs the (1) order of
succession, (2) the amount of successional rights, (3) the persons are NOT granted testamentary capacity.
intrinsic validity of the provision of the will and (4) the
DISQUALIFIED PERSONS
capacity to succeed.
- Testamentary provision that successional right to decedent’s 1. THOSE UNDER 18 [ART797]
estate would be governed by law other than his national law Under EO292, the Administrative Code of
if void, being contrary to article 16 of the NCC. 1987, which took effect on November 24,
1989, years are now reckoned according to
the Gregorian Calendar.
Subsection 2 – Testamentary Capacity Sec31 provides for the legal periods
And Intent a) Year – 12 calendar months
b) Month – 30 days, unless specific
calendar month is referred to, in
ART. 796. All persons who are not expressly which case it shall be computed
prohibited by law may make a will. according to the number of days the
specific calendar month contains
ART. 797. Persons of either sex under eighteen c) Day – 24 hours
years of age cannot make a will. d) Night – Sunset to sunrise
2. THOSE OF UNSOUND MIND [ART798]
ART. 798. In order to make a will it is essential Unsoundness of Mind [Insanity]
that the testator be of sound mind at the time Absence of the qualities of soundness of
of its execution. mind
Defined by the Code only by indirection
ART. 799. To be of sound mind, it is not because only soundness of mind is
necessary that the testator be in full defined under Art799.
possession of all his reasoning faculties, or
SOUNDNESS OF MIND [SANITY]
that his mind be wholly unbroken,
NEGATIVELY
unimpaired, or unshattered by disease, injury 1. Not necessary that testator be in full
or other cause. possession of reasoning faculties
It shall be sufficient if the testator was 2. Not necessary that testator’s mind be wholly
able at the time of making the will to know the unbroken, unimpaired, unshattered by
nature of the estate to be disposed of, the disease, injury or other cause.
proper objects of his bounty, and the POSITIVELY – Ability to know 3 things
character of the testamentary act. 1. Nature of estate to be disposed of
Testator should have a fairly accurate
ART. 800. The law presumes that every person is knowledge of what he owns.
of sound mind, in the absence of proof to the The more one owns, the less accurate his
contrary. knowledge of his estate expected to be.
The burden of proof that the testator was 2. Proper objects of one’s bounty; &
not of sound mind at the time of making his Testator should know, under ordinary
dispositions is on the person who opposes circumstances, his relatives in the most
proximate degrees, his knowledge
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expectedly decreasing as the degrees Sexist provision, contains an erroneous and unintended
become more remote. suggestion that a married man does not have the same
privilege.
3. Character of testamentary act.
It is not required that the testator know the Article 97 of the Family Code supersedes this in part
legal nature of a will with the erudition of a Art97. Either spouse may dispose by will of his or
civilest. her interest in the community property.
All that he need know is that the
document he is executing is one that
disposes of his property upon death.
Cases for Arts. 796-803
Legal Importance and Implication of Mental Capacity
Bagtas v. Paguio
Law is interested in the legal consequences of the
testator’s mental capacity or incapacity, not in the
- This is an appeal from an order of the CFI admitting to
medical aspects of mental disease.
probate a document which was offered as the last will and
The testator could be mentally aberrant medically testament of Pioquinto Paguio.
but testamentarily capable, or vice versa, mentally - The testator died a year and 5 months following the date of
competent medically but testamentarily the execution of the will.
incompetent. - For some 14 or 15 years prior to his death, the testator
TEST – as long as the testator, at the time he suffered from paralysis of the left side of his body.
made the will, was capable of perceiving the three - A few years prior to his death, his hearing became impaired
things [nature of estate, objects of bounty, and and he lost the power of speech.
character of testamentary act], he has - Owing to the paralysis of certain muscles, his head fell to
testamentary capacity, whatever else he may be one side and saliva ran from his mouth. However, he
medically. retained the use of his right hand, and was able to write
fairly well. Through the medium of signs he was able to
PRESUMPTION / GENERAL RULE – rebuttable indicate his wishes to his wife and to other members of his
Presumption of Sanity under Art800. family.
TWO EXCEPTIONS – when there is a rebuttable - At the time of the execution of the will, there were four
presumption of Insanity – testamentary witnesses.
- It appears that the testator made notes disposition he
1. When testator, one month or less before the
desires to make his property, from which his attorney
execution of the will, was publicly known to be
prepared a formal will which was then read to the testator,
insane who assented to it section by section. After which the whole
2. When the testator executed the will after being will is read in a loud voice and is then signed by the testator
placed under guardianship or ordered and four witnesses in the presence of each other.
committed, in either case, for insanity under
Rules 93 and 101 of the RoC, and before said Whether the will was executed according to the formalities and
order has been lifted. requirements of the law.
- YES. The SC held that the requirements of the Code of Civil
The time for determining mental capacity Procedure were fully complied with.
time of execution of the will and no other temporal
criterion is to be applied Whether the testator was in full enjoyment and use of his
mental faculties to execute a valid will.
- YES. The is no sufficient evidence to overthrow the legal
presumption of a sound mind and disposing memory.
ART. 802. A married woman may make a will - Witnesses testified that, at the time of the execution of the
without the consent of her husband, and will, the testator was in his right mind and that although
without the authority of the court. serious ill, he indicated by the movements of his head what
his wishes were.
Sexist provision, contains an erroneous and unintended - The evidence shows that the writing and the execution of the
suggestion that a married man does not have the same will occupied a period of several hours and that the testator
privilege. was taking an active part in all the proceedings.
- The SC held that that the testimony of the two physicians do
Suggested rewording – not in any way strengthens the argument that the testator
“A married person may make a will without his or
was mentally incapacitated. The SC said that their testimony
only confirms the fact that the testator had been afflicted
her spouse’s consent.”
with paralysis but neither of them attempted to state what
the mental condition of the testator was at the time he
executed the will in question.
ART. 803. A married woman may dispose by will - The SC held that it cannot conclude from this that he was
of all her separate property as well as her wanting of the necessary mental capacity to dispose of his
share of the conjugal partnership or absolute property by will.
- The SC affirmed the order probating the will.
community property. - In our jurisdiction, the presumption of law is in favor of the
mental capacity of the testator and the burden is upon the
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contestants of the will to prove the lack of testamentary 4. On the issue of the execution of an earlier will, the
capacity. SC held that the execution of a former will is no proof
- When a testator has never been adjudged insane by a court that she did not execute a later one. She had the
of competent jurisdiction, there is a presumption of mental perfect right to alter, modify, or revoke any and all of
soundness which must be overcome by competent proof. her former wills and to make a new one.
- To constitute a sound mind and disposing memory, it is not - While it is an absolute rule that one who makes a will must
necessary that the mind shall be wholly unbroken, sign the same in the presence of the witnesses and the
unimpaired, and unshattered by disease or otherwise, or witnesses must sign in the presence of each other and of
that the testator be in full possession of all his reasoning the testator, yet the actual seeing of the signatures made ins
faculties. not necessary.
- Perfect soundness of mind is not essential to testamentary - It is sufficient if the signatures are made where it is possible
capacity. for the necessary parties, if they desire to see, may see the
- Failure of memory is not sufficient unless it be total or signatures placed upon the will.
extends to his immediate family or property. - A signature containing only the first name is nevertheless a
- The question is that, were his mind and memory sufficiently signature and is sufficient to satisfy the requirements of the
sound to enable him to know and understand the business law.
in which he was engaged at the time when he executed his - If the writing of a mark simply upon a will is sufficient
will. indication of the intention of the person to make and execute
a will, then certainly the writing of a portion or all of the name
Yap Tua v. Yap Ca Kuan & Yap Ca Llu should be accepted as a clear indication of an intention to
execute the will.
- Yap Tua, through a representative, filed a petition for the
probate of the will of Tomasa Elizaga Yap Caong, the Samson v. Tan
deceased.
- The will dated 11 August 1909 was signed by Tomasa and 4 - The Testator was suffering from diabetes and had been in a
other witnesses. comatose condition for several days prior to his death. He
- After due hearing, the judge ordered that Tomasa’s will be died at about 8:00pm and the will is alleged to have been
allowed and admitted to probate. executed in the noon of the same day.
- Later, Yap Ca Kuan and Yap Ca Llu (the minors) appeared - Oppositor in this case alleges that at the time of the
and were interested in the matters of the will. A guardian ad execution of the will, testator is not of sound and disposing
litem (Gabriel) was then appointed. mind.
- Gabriel then filed a petition alleging that the will admitted to
probate was null because: Whether or not testator is of unsound mind
1. It was not executed in accordance with the law - SC held that he was not. Although the attending physician
(specifically with the signing of the witnesses) testified that he was in a state of coma, he also stated that
2. Tomasa was not mentally capacitated to execute the coma has varying degrees of coma ad in its lighter forms the
will due to her sickness patient may be aroused and have lucid intervals.
3. Tomasa’s signature was obtained through fraud and - The petitioner presented 5 witnesses who all testified that he
illegal influence was conscious and could her and understand what was said
4. Tomasa had earlier executed another will dated 06 to him and was able to indicate his desires. He could speak
August 1909 with all the formalities required by law distinctly or move his head to answer questions. This was
- A rehearing was then ordered by the judge. given greater weight by the court as against the two
witnesses presented by oppositor, one of which was the
WON the will dated 11 August 1909 executed by Tomasa was oppositor’s mother who was not considered as a
valid. disinterested witness.
- YES. - Mere professional speculation cannot prevail over the
1. A plan of the room where the will was signed was positive statements of 5 apparently credible witnesses
presented. It was shown that from the bed where whose testimony does not seen unreasonable.
Tomasa was lying, it was possible for her to see the
table on which the witnesses signed the will. Torres v. Lopez
2. As regard the issue of the soundness of Tomasa’s
mind when she executed the will, SC held that in - The controversy on this case is centered on the allowance
view of the conflicting testimonies and the findings of or the disallowance of the will of Tomas Rodriguez.
the lower court, it upheld the conclusion of the lower - Vicente Lopez acted as the administrator of the properties of
court that Tomasa had clear knowledge and knew the decedent. A year before Tomas’s death, the latter was
what she was doing at the time she signed the will. also subjected to a guardianship proceeding, where the
3. Although it was contended that the signature of court found the decedent incapacitated to take care of
Tomasa in the latter will varied from the one found in himself and his property. For this reason, Vicente was
the earlier will, SC held that if Tomasa signed any named also as the guardian of the deceased.
portion of her name to the will, with the intention to - By virtue of the court’s finding, the decedent was committed
sign the same, that will amount to a signature. The in the Philippine General Hospital where he eventually died.
lower court found that no undue influence was - Tomas expressed his desire to make a will during one of the
exercised over Tomasa when she executed the will. visits of Santiago Lopez and accordingly, they
The findings of the lower court, which had the commissioned Atty. Mina to ascertain the wishes of the
opportunity to see, hear and note the witnessed decedent.
during examination is accorded great weight. SC
upheld the lower court’s findings.
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- The same will prepared by the attorney was the same - The mental capacity of the testator was established by the
document signed by the testator and the other witnesses at fact that she was able to leave home and travel to LA Union
the General Hospital on January 3, 1924. to consult with the doctor, that she was able to give her
- After the decedent died, some of the relatives of Tomas, the medical history to her physician, that she in fact called an
Margarita Lopez faction, wanted the will invalidated on the attorney to make her will, and that in fact she brought with
ground that the testator was of unsound mind, and that the her the deeds to her properties.
latter was induced due to fraud on the execution of the will. - All these show that Matea was intelligent enough to make
- During the trial, the Luz Lopez faction presented doctors the dispositions.
whose medical findings reveal that the testator was of sound - The allegation that Mateo was induced by the fact that she
mind though weak on memory during the execution of the donated one her properties to the bishop of said diocese
will. The doctors on the Margarita faction however have the was not sufficiently proven by the evidence.
opposite conclusion, that in fact the decedent is suffering - Neither senile debility, nor blindness, nor poor memory, is by
from senile debility or of mental impairment. itself sufficient to incapacitate a person for making his will.
Whether or not the will of Tomas Rodriguez should be allowed Gonzales v. Caruncong
- YES. The SC held that the will should be allowed.
- The allegation of fraud was not proved by the evidence. - On November 27, 1948, Manuela Ibarra Vda. de Gonzales
- As to the soundness of the mind of Tomas, the Court first (testatrix) died leaving five children namely Alejandro
declared that what is necessary is that the decedent must Gonzales, Jr., Manuel Gonzales, Leopoldo Gonzales,
have a disposing mind. This means that the circumstances Manolito Gonzales de Carungcong, and Juan Gonzales. Her
of advanced age, health or weak memory alone are not estate is estimated at P150,000.
conclusive of the capacity of a person to make a will. - Thereafter, one of the children of the testatrix, Manuel
- Furthermore, the fact that a person is adjudged by a court to Gonzales filed in CFI Rizal for the probate of an alleged will
be incapacitated in a guardianship proceeding is not by the testatrix executed on November 16, 1942, devising to
conclusive. Our laws do not have any statute providing for Manuel Gonzales the greater portion of the estate w/o
the conclusiveness of the judgments of a court on incapacity impairing the legitimes of the other children.
of a person. A person placed under guardianship is - On the other hand, Manolita de Carungcong filed in the
presumed to be incapable but this presumption is refutable same court a petition for the probate of another alleged will
by contrary evidence. executed by the testatrix on May 5, 1945 devising to him the
- In this case, since there were conflicting testimonies of well- greater portion of the estate.
regarded physicians the court decided to base the capacity - Alejandro Gonzales, Jr, one of the siblings then sought the
of Tomas Rodriguez to make a will on the nature of the will disallowance of the wills presented by his two other siblings,
itself. assuming that even if they are valid, such were already
- As the will was simple and can be easily understood. revoked by the testatrix in an instrument executed by her on
- Also, the fact that the testator was able to confer with Atty. November 18, 1948 with the result that the testatrix’s estate
Mina and disclose to him his interests, that he generally should be distributed as if she died intestate.
remembered close relatives and that he was still able to sign - Thereafter, the CFI of Rizal upheld the probate of the will
the document properly shows that the deceased had presented by Manolita Carungcong. And said that the will
testamentary capacity. Manuel Gonzales presented for probate was revoked
- Testamentary capacity is the capacity to comprehend the already by the one Manolita presented and that the
nature of the transaction in which the testator is engaged at instrument presented by Alejandro was executed without the
the time, to recollect the property to be disposed of and the knowledge and testamentary capacity of the testatrix.
persons who would naturally have claims upon the testator, - Hence this appeal.
and to comprehend the manner in which the instrument will
distribute his property. WON, the will presented by Manolita Carungcong was valid
despite the fact that it allegedly has no attestation clause
Sancho v. Abella - The will is valid.
- The appellants contest that the will is not valid because it
- Matea Abella, sometime prior to her death, asked her niece does not contain any attestation clause; that the concluding
to accompany her to a reputable physician for consultation. paragraph to be the attestation clause, it is not valid
- During her visit, Matea stayed in one of the convents in San because it is the act of the testatrix and not of the witnesses,
Fernando La Union. and because it does not state the number of sheets or
- Said physician, Dr. Antonio Querol, diagnosed her to be pages of the will.
suffering from dyspepsia and cancer of the stomach. - However, in a precedent case, the high court had already
- As such, Matea, immediately asked her attorney to come to sustained an attestation clause made by the testator and
the convent so that she may make her will. The will was forming part of the body of the will.
accordingly drafted and signed by the testator in the - In that case, it was said that, “The only apparent anomaly
presence of the witnesses. we find is that it appears to be an attestation made by the
- Months after, Matea died. testator himself more than by the instrumental witnesses.
- The opponent claims that Matea did not have capacity to This apparent anomaly however is not in our opinion serious
make the will at the time she executed the same as Mate nor substantial as to affect the validity of the will, appearing
was deaf, has defective eyesight and is suffering from that right under the signature of the testator, there appear
severe impairment of memory. the signatures of the three instrumental witnesses.”
- And such is a sufficient compliance with requirements set
Whether or not Matea had testamentary capacity out by the law. It is significant that the law does not require
- The Sc held in the affirmative. the attestation to be contained in a single clause. That
unsubstantial departure from the usual forms should be
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ignored, especially where the authenticity of the will is not considered them as his parents. Mauro died and Marcelina
assailed. got pension from the Federal gov’t.
- Now, with respect to the instrument presented by Alejandro - Agapito married Nenita and had a child named Lilia.
Gonzales, it can be shown that the instrument was prepared Agapito became a soldier. When he was disabled Nenita
when the testatrix lacked the testamentary capacity as this became his guardian.
was proved by the attending physician. When the alleged - Agapito allegedly had a girlfriend, Arsenia dela Cruz who
instrument was prepared, the testatrix was already suffering also tried to become his guardian but was denied by the
and was in a comatose and unconscious state and could not court. A child, Marilyn Sy was thereafter entrusted to
talk or understand. Arsenia by the Spouses Sy. Arsenia delivered the child to
- An attestation clause made by the testator and signed by the Marcelina Salvador, who brought up the child as a supposed
witnesses substantially complies with law. daughter of Agapito and her granddaughter, but was never
- Statement of sheets of pages in body of will held sufficient legally adopted by Agapito.
when considered in connection with attestation clause. - When Marcelina died, her laundrywoman, Marina Peje, filed
a petition for probate of Marcelina’s will, which was written in
Hernaez v. Hernaez English and thumb marked by Marcelina, naming Marina as
the executrix and Marilyn as the sole heir.
- The case was assigned to Honrado who appointed Marina
as the administrator and allowed her to withdraw sums of
Subsection 3 – Forms of Wills money from Marcelina’s saving’s account. Upon motion of
Marina, an order was issued to eject the occupants of
ART. 804. Every will must be in writing and Marcelina’s house. This order alerted Nenita to the
executed in a language or dialect known to existence of the testamentary proceeding for the settlement
the testator. of Marcelina’s estate.
- Nenita opposed the proceedings but to no avail.
Art804 lays down Common Requirements that apply Whether disciplinary action should be taken against Honrado
both to ATTESTED and HOLOGRAPHIC wills. - Yes. The testatrix was illiterate. In the opening paragraph
Art805-808 lays down special requirements for attested of the will, it was stated that English was a language
wills. Articles 810-814 lays down special requirements understood and know to the testatrix. But in its concluding
for holographic wills. paragraph, it was stated that the will was read to the testatrix
and translated into Filipino. That could only mean that the
TWO COMMON REQUIREMENTS will was written in a language not known to the illiterate and,
1. IN WRITING therefore, void because of the mandatory provision of art.
Oral wills [the testamentum nuncupativum of 804 of the CC that every will must be executed in a
the Institutes] are not recognized in the Civil language known to the testator.
Code. - Had Honrado been careful and observant, he could have
However, oral wills are allowed under the noted not only the anomaly as to the language of the will but
Code of Muslim Personal Laws or PD1083 in also that there was something wrong in instituting the
relation to Art102(2). supposed granddaughter as sole heiress and giving nothing
at all to her supposed father who was still alive.
2. IN A LANGUAGE OR DIALECT KNOWN TO THE - He should also have noted that the notary was not
TESTATOR presented as witness.
The provisions of Article 804 are - A will written in a language that is not known to the testator
MANDATORY and failure to comply with the is void.
two requirements nullifies the will.
Neither the will nor the attestation clause Abangan v. Abangan
need state compliance with Art804. This can
be proved by Extrinsic Evidence. - The CFI admitted to probate Ana Abangan’s will.
Presumption of Compliance – it may - The said document, duly probated as Ana Abangan’s will,
consists of two sheets, the first of which contains all the
sometimes be presumed that the testator
disposition of the testatrix, duly signed at the bottom of
knew the language in which the will was Martin Montalban (in the name and under the direction of the
written. testatrix) and by 3 witnesses.
a) Will must be in a language or dialect - The second sheet contains only the attestation clause duly
generally spoken in the place of signed at the bottom by the three instrumental witnesses.
execution, and - Neither of these sheets is signed on the left margin by the
b) The testator must be a native or testatrix and the three witnesses, nor numbered by letters.
resident of said locality.
Whether the absence of the signature on the left margin of will
CASES invalidate Abangan’s will.
Suroza v. Honrado - NO. The SC held that in a will consisting of two sheets, the
first of which contains all the testamentary dispositions and
- This is a complaint against Judge Honrado for admitting to is signed at the bottom by the testator and 3 witnesses and
probate a will which, on its face is void. the second contains only the attestation clause and is
- Mauro Suroza, a corporal in the US army married Marcelina signed also at the bottom by the 3 witnesses, it is not
Salvador. They reared a boy named Agapito Suroza, who necessary that both sheets be further signed on their
margins by the testator and the witnesses, or be paged.
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WON the will was valid. Specifically, is the signature of the Icasiano v. Icasiano
person instructed by the testator to sign the will valid.
- YES. With respect to the validity of the will, it is unimportant - Josefa Villacorte died in Manila on September 12, 1958; on
whether the person who writes the name of the testatrix June 2, 1956, Villacorte executed a last will and testament in
signs his name or not. duplicate at the house of her daughter Mrs. Felisa Icasiano
- The important thing is that it clearly appears that the name before three instrumental witnesses, namely; attorneys
of the testatrix was signed at her express direction in the Justo P. Torres, Jr. and Jose V. Natividad, and Dr. Vinicio B.
presence of 3 other witnesses and that they attested and Diy.
subscribed it in her presence and in the presence of one - The records show that the original of the will, consists of five
another. That is all the statute requires. pages, and while signed at the end and in every page, it
- The cases relied upon by the oppositors are not in point. In does not contain the signature of one of the attesting
those cases, the reason for the invalidation of the wills witnesses, Atty. Jose V. Natividad, on page three (3)
concerned was that the persons instructed to sign for the thereof; but the duplicate copy attached to the amended and
testator signed their own names instead of the names of the supplemental petition is signed by the testatrix and her three
testators in each case. attesting witnesses in each and every page.
- The will must be in writing and signed by the testator, or the - Witness Natividad, who testified on his failure to sign page
testator’s name written by some other person in his three (3) of the original, admits that he may have lifted two
presence, and by his express direction, and attested and pages instead of one when he signed the same, but affirmed
subscribed by 3 or more credible witnesses in the presence that page three (3) was signed in his presence.
of the testator and of each other.
- The fact that the testator signed the will or that he caused it Whether or not the will is void (since one of the pages in the
to be signed by another person at his express direction and original copy was not signed by one of the witnesses)
that the same was signed by the witnesses must be included - NO. The inadvertent failure of one witness to affix his
in the attestation. signature to one page of a testament, due to the
simultaneous lifting of two pages in the course of signing, is
Nera v. Rimando not per se sufficient to justify denial of probate.
- Impossibility of substitution of this page is assured not only
- Only questioned raised by the evidence in this case as to the fact that the testatrix and two other witnesses did sign
the due execution of the instrument propounded as a will is the defective page, but also by its bearing the coincident
whether the one of the subscribing witnesses was present in imprint of the seal of the notary public before whom the
the small room where the will was executed at the time testament was ratified by testatrix and all three witnesses.
when the testator and the other subscribing witnesses - The law should not be so strictly and literally interpreted as
attached their signatures. to penalize the testatrix on account of the inadvertence of a
single witness over whose conduct she had no control,
WON, the will was validly witnessed by one of the subscribing where the purpose of the law to guarantee the identity of the
witnesses to make the will valid. testament and its component pages is sufficiently attained,
- Yes. The subscribing witness validly witnessed the signing. no intentional or deliberate deviation existed, and the
- Majority of the members of the court is of the opinion that evidence on record attests to the full observance of the
the subscribing witness was indeed in the small room to be statutory requisites. Otherwise, witnesses may sabotage
able to observe the signing of the will be the testator and the will by muddling or bungling it or the attestation clause".
other subscribing witnesses. - That the failure of witness Natividad to sign page three (3)
- The trial court decided when it said that the fact that one of was entirely through pure oversight is shown by his own
the alleged witnesses signed the instrument in the outer testimony as well as by the duplicate copy of the will, which
room when the others were inside would not be sufficient in bears a complete set of signatures in every page. The text of
itself to invalidate the execution of the will. the attestation clause and the acknowledgment before the
- But this Court is of the opinion that had this subscribing Notary Public likewise evidence that no one was aware of
witness been proven to have been in the outer room, it the defect at the time.
would have been invalid as a will. - The law should not be so strictly and literally interpreted
- But it is especially to be noted that the position of the parties where the purpose of the law to guarantee the identity of the
with relation to each other at the moment of the subscription testament and its component pages is sufficiently attained.
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- Attestation consists in witnessing the testator’s execution of will and for the latter’s appointment as the special
the will in order to see and take note mentally that those administratrix of the decedent’s estate.
things are done which the statute requires for the execution - Witnesses presented by the proponents of the will testified
of a will and that the signature of the testator exists as a fact. that the decedent was of sound mind when she executed
- Subscription is the signing of the witnesses’ names upon the the will, and that the decedent first read the will silently
same paper for the purpose of identification of such paper before she signed it.
as the will which was executed by the testator. - Oppositors of the will however contended that it was
physically impossible for the decedent to have read the will
as she had a severely impaired eyesight as testified by Dr.
ART. 807. If the testator be deaf, or a deaf-mute, Jesus Tamesis.
- The physician found out on March 1960 that the decedent
he must personally read the will, if able to do
had a cataract on the left eye and her right eye also had
so; otherwise, he shall designate two persons difficulty seeing printed pages.
to read it and communicate to him, in some - The physician further testified that despite the operation and
practicable manner, the contents thereof. removal of the cataract and the decedent’s being fitted with
aphakic lens, the latter’s vision remained capable of viewing
ART. 808. If the testator is blind, the will shall be only distant objects and is not capable of reading printed
articles.
read to him twice; once by one of the
subscribing witnesses, and again, by the Whether or not the decedent is considered “blind” pursuant to
notary public before whom the will is the provisions of Art 808
acknowledged. - Yes. The SC held that for all intents and purposes of the
rules on probate, the decedent is like a blind testator, and
Special Requirements for Handicapped Testators the due execution of her will would have required faithful
For Deaf / Deaf-Mute testator
observance of the provisions of Art 808 of the CC.
- Also, The SC found it worthy to mention the fact that that the
1. Able to Read – must read the will personally
will was executed without any regard for the defective vision
2. Unable to Read – must designate two persons
of the decedent. The testament was cramped in a single
to read the will and communicate to him, in page and was abundant with typographical errors. This only
some practicable manner its contents. strengthens the proposition that the decedent could not have
Does this mean the 2 persons must read or understood the alleged testament.
perform each task in turn?
Whether or not the will was duly executed
For Blind Testator – to be read to him twice, once - No. Considering that the testator is within the term “blind” as
by one of the subscribing witnesses, and another contemplated under Art 808, the due execution of the
time by the notary. decedent’s will would have required the reading of the will
twice (once by one of the witnesses, and once by the
Art808 is MANDATORY notary).
If art808 is mandatory, by analogy Art807 is also - However, no such reading was proved or shown in this
mandatory. Failure to comply with either would case. Thus, the will should be declared invalid.
result in nullity and denial of probate. - The rationale behind the reading of the will to the blind
testator is to make the provisions thereof known to him, so
The requirement has been liberally applied, SC that he may be able to object if they are not in accordance
declaring substantial compliance to be sufficient. with his wishes.
Applies not only to blind testators but also to those - A person who is not blind but is similarly incapacitated to
who, for one reason or another, are incapable of read the will is within the ambit of Art 808.
reading their wills.
Substantially complied with when documents were Alvarado v. Gaviola, Jr.
read aloud to the testator with each of the 3
instrumental witnesses and the notary following the - On 5 November 1977, 79-year old Brigido Alvarado
reading with their respective copies. executed a notarial will entitled “Huling Habilin” wherein he
disinherited an illegitimate son, petitioner Cesar Alvarado,
and expressly revoked a previously executed holographic
Burden of proof is upon the proponent of the will that
will at the time awaiting probate before the RTC of Laguna.
the special requirement of the article was complied with.
- According to Bayani Ma. Rino, private respondent, he was
At the same time, there is no requirement that present when the said notarial will was executed, together
compliance with the requirement be stated either in the with three instrumental witnesses and the notary public,
will or the attestation clause. where the testator did not read the will himself, suffering as
he did from glaucoma.
- Rino, a lawyer, drafted the eight-page document and read
CASE the same aloud before the testator, the three instrumental
Garcia v. Vasquez witnesses and the notary public, the latter four following the
reading with their own respective copies previously
- This case pertains to the will of the late Gliceria Avelino del furnished them.
Rosario. - Thereafter, a codicil entitled “Kasulatan ng Pagbabago ng
- Upon the decedent’s death, her niece Consuelo Precilla, Ilang Pagpapasiya na Nasasaad sa Huling Habilin na May
filed a petition for the probate of the decedent’s holographic Petsa Nobiembre 5, 1977 ni Brigido Alvarado” was executed
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changing some dispositions in the notarial will to generate which, when taken into account, may only defeat the
cash for the testator’s eye operation. testator’s will.
- Said codicil was likewise not read by Brigido Alvarado and - See Abangan v. Abangan.
was read in the same manner as with the previously
executed will.
- When the notarial will was submitted to the court for probate,
Cesar Alvarado filed his opposition as he said that the will
ART. 809. In the absence of bad faith, forgery, or
was not executed and attested as required by law; that the fraud, or undue and improper pressure and
testator was insane or mentally incapacitated due to senility influence, defects and imperfections in the
and old age; that the will was executed under duress, or form of attestation or in the language used
influence of fear or threats; that it was procured by undue therein shall not render the will invalid if it is
pressure and influence on the part of the beneficiary; and proved that the will was in fact executed and
that the signature of the testator was procured by fraud or
trick.
attested in substantial compliance with all the
requirements of Article 805.
Whether or not notarial will of Brigido Alvarado should be
admitted to probate despite allegations of defects in the According to JBL Reyes, “Liberalization Running Riot,”
execution and attestation thereof as testator was allegedly instead a possible rewording would be –
blind at the time of execution and the double-reading In the absence of bad faith, forgery, or fraud, or
requirement under Art. 808 of the NCC was not complied with. undue and improper pressure and influence, defects and
- YES. The spirit behind the law was served though the letter imperfections in the form of attestation or in the language
was not. Although there should be strict compliance with the used therein shall not render the will invalid if such defects
substantial requirements of law in order to insure the and imperfections can be supplied by an examination of the
authenticity of the will, the formal imperfections should be will itself and it is proved that the will was in fact executed
brushed aside when they do not affect its purpose and
and attested in substantial compliance with all the
which, when taken into account, may only defeat the
requirements of Article 805.
testator’s will.
- Cesar Alvardo was correct in asserting that his father was Examples
not totally blind (of counting fingers at 3 feet) when the will
1. A failure by the attestation clause to state that
and codicil were executed, but he can be so considered for
the testator signed every page can be liberally
purposes of Art. 808.
- That Art. 808 was not followed strictly is beyond cavil. construed, since that fact can be checked by a
- However, in the case at bar, there was substantial visual examination.
compliance where the purpose of the law has been satisfied: 2. Failure by the attestation clause to state that
that of making the provisions known to the testator who is the witnesses signed in one another’s
blind or incapable of reading the will himself (as when presence should be considered a FATAL
he is illiterate) and enabling him to object if they do not FLAW since the attestation clause is the only
accord with his wishes. textual guarantee of compliance.
- Rino read the testator’s will and codicil aloud in the presence The rule is that omission which can be supplied by an
of the testator, his three instrumental witnesses, and the examination of the will itself, without the need of
notary public. resorting to extrinsic evidence, will not be fatal and,
- Prior and subsequent thereto, the testator affirmed, upon correspondingly, would not obstruct the allowance to
being asked, that the contents read corresponded with his probate of the will being assailed.
instructions. However, those omissions which cannot be supplied
- Only then did the signing and acknowledgment take place. except by evidence aliunde would result in the
- There is no evidence that the contents of the will and the invalidation of the attestation clause and ultimately, of
codicil were not sufficiently made known and communicated
the will itself.
to the testator.
- With four persons, mostly known to the testator, following
the reading word for word with their own copies, it can be CASES
safely concluded that the testator was reasonably assured Caneda v. CA
that what was read to him were the terms actually appearing
on the typewritten documents. - On December 5, 1978, Mateo Caballero, a widower without
- Art. 808 of the New Civil Code provides: “If the testator is any children and already in the twilight years of his life,
blind, the will shall be read to him twice; once, by one of the executed a last will and testament at his residence before 3
subscribing witnesses, and again, by the notary public witnesses.
before whom the will is acknowledged.” - He was assisted by his lawyer, Atty. Emilio Lumontad.
- The rationale behind the requirement of reading the will to - In the will, it was declared that the testator was leaving by
the testator if he is blind or incapable of reading the will to way of legacies and devises his real and personal properties
himself (as when he is illiterate), is to make the provisions to several people all of whom do not appear to be related to
thereof known to him, so that he may be able to object if the testator.
they are not in accordance with his wishes. - 4 months later, Mateo Caballero himself filed a case seeking
- Although there should be strict compliance with the the probate of his last will and testament, but numerous
substantial requirements of law in order to insure the postponements pushed back the initial hearing of the
authenticity of the will, the formal imperfections should be probate court regarding the will.
brushed aside when they do not affect its purpose and - On May 29, 1980, the testator passed away before his
petition could finally be heard by the probate court.
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- Thereafter one of the legatees, Benoni Cabrera, sought his - Also, Art. 809 does not apply to the present case because
appointment as special administrator of the testator’s estate. the attestation clause totally omits the fact that the attesting
- Thereafter, the petitioners, claiming to be nephews and witnesses signed each and every page of the will in the
nieces of the testator, instituted a second petition for presence of the testator and of each other. The defect in this
intestate proceedings. They also opposed the probate of the case is not only with respect to the form or the language of
testator’s will and the appointment of a special administrator the attestation clause. The defects must be remedied by
for his estate. intrinsic evidence supplied by the will itself which is clearly
- Benoni Cabrera died and was replaced by William Cabrera lacking in this case.
as special administrator and gave an order that the testate - Therefore, the probate of the will is set aside and the case
proceedings for the probate of the will had to be heard and for the intestate proceedings shall be revived.
resolved first. - Article 809 cannot be used to cure the defects of the will
- In the course of the proceedings, petitioners opposed to the when it does not pertain to the form or language of the will.
allowance of the testator’s will on the ground that on the This is because there is not substantial compliance with
alleged date of its execution, the testator was already in Article 805.
poor state of health such that he could not have possibly
executed the same. Also the genuineness of the signature of Cases for Arts. 807-809
the testator is in doubt.
- On the other hand, one of the attesting witnesses and the Gil v. Murciano
notary public testified that the testator executed the will in
question in their presence while he was of sound and - The CFI of Manila admitted to probate the alleged will and
disposing mind and that the testator was in good health and testament of the deceased Carlos Gil. The oppositor Pilar
was not unduly influenced in any way in the execution of his Gil Vda. de Murciano appealed to the SC, arguing that the
will. will was void since the attestation clause thereof does not
- Probate court then rendered a decision declaring the will in state that the alleged testator signed the will. It declares only
question as the last will and testament of the late Mateo that it was signed by the witnesses.
Caballero.
- CA affirmed the probate court’s decision stating that it Whether or no the will is valid.
substantially complies with Article 805. Hence this appeal. - NO. This is a fatal defect, for the precise purpose of the
attestation clause is to certify that the testator signed the
WON, the attestation clause in the will of the testator is fatally will, this being the most essential element of the clause.
defective or can be cured under the art. 809. - Without it there is no attestation at all. It is said that the court
- No. It does not comply with the provisions of the law. may correct a mere clerical error.
- Ordinary or attested wills are governed by Arts. 804 to 809. - This is too much of a clerical error for it affects the very
The will must be acknowledged before a notary public by the essence of the clause. Alleged errors may be overlooked or
testator and the attesting witnesses. The attestation clause corrected only in matters of form which do not affect the
need not be written in a language known to the testator or substance of the statement.
even to the attesting witnesses. - Correction may not be cured by inference considering the
- It is a separate memorandum or record of the facts clear, unequivocal, language of the statute as to how the
surrounding the conduct of execution and once signed by attestation clause should be made. It is to be supposed that
the witnesses it gives affirmation to the fact that compliance the drafter of the alleged will read the clear words of the
with the essential formalities required by law has been statute when he prepared it. For the court to supply alleged
observed. deficiencies would be against the evident policy of the law.
- The attestation clause, therefore, provides strong legal - In adopting liberal construction of a will, evidence aluinde is
guaranties for the due execution of a will and to insure the not allowed to fill the void or supply missing details. What is
authenticity thereof. permitted is a probe into the will, an exploration within its
- It is contended by petitioners that the attestation clause in confines, to ascertain its meaning or to determine the
the will failed to specifically state the fact that the attesting existence or absence of the requisite formalities of the law.
witnesses witnessed the testator sign the will and all its - The right to make a testamentary disposition of one's
pages in their presence and that they, the witnesses, property is purely of statutory creation, and is available only
likewise signed the will and every page thereof in the upon a compliance with the requirements of the statute. The
presence of the testator and of each other. And the Court formalities which the Legislature has prescribed for the
agrees. execution of a will are essential to its validity, and cannot be
- The attestation clause does not expressly state therein the disregarded.
circumstance that said witnesses subscribed their respective - The mode so prescribed is the measure for the exercise of
signatures to the will in the presence of the testator and of the right, and the heir can be deprived of his inheritance only
each other. by a compliance with this mode.
- The phrase, “and he has signed the same and every page - For the purpose of determining whether a will has been
thereof, on the space provided for his signature and on the properly executed, the intention of the testator in executing it
left hand margin,” obviously refers to the testator and not the is entitled to no consideration.
instrumental witnesses as it is immediately preceded by the - For that purpose only the intention of the Legislature, as
words” as his last will and testament.” expressed in the language of the statute, can be considered
- Clearly lacking is the statement that the witnesses signed by the court, and whether the will as presented, shows a
the will and every page thereof in the presence of the compliance with the statute.
testator and of one another. That the absence of the
statement required by law is a fatal defect or imperfection
which must necessarily result in the disallowance of the will
that is here sought to be probated.
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the language employed it can reasonable deduced that the May the testator sign by means of a
attestation clause fulfills what the law expects of it. thumbprint? NO, article says will must be
“entirely handwritten, dated and signed by the
hand of the testator himself.”
ART. 810. A person may execute a holographic
will which must be entirely written, dated, and CASES
signed by the hand of the testator himself, It Roxas v. De Jesus
is subject to no other form, and may be made
- After the death of the de Jesus spouses, Simeon Roxas
in or out of the Philippines, and need not be (brother of the deceased Bibliana Roxas de Jesus) filed a
witnessed. special proceeding to settle the intestate estate of the de
Jesus spouses.
Simplicity of the holographic will is its obvious - Later, Simeon delivered to the court a document purporting
advantage, along with other benefits such as to be the holographic will of Bibliana. He stated that after
1. Secrecy being appointed as administrator, he found a notebook of
2. Inexpensiveness Bibliana which contained the letter-will addressed to her
3. Brevity children written and signed by Bibliana.
- The will was dated “FEB./61” and this was confirmed by the
testimonies of Simeon as and the 2 children of Bibliana.
But that very simplicity brings about disadvantages –
- Henson, another compulsory heir, opposed the probate of
1. Danger of forgery
the holographic will contending that it was not dated as
2. Greater difficulty of determining testamentary required by Art. 810.
capacity - She contends that the law requires that the will should
3. Increased risk of duress contain the day, month, and year of its execution and this
should be complied with.
REQUIREMENTS OF A HOLOGRAPHIC WILL
1. COMPLETELY HANDWRITTEN BY THE WON the holographic will dated as “FEB./61” was properly
TESTATOR dated.
If testator executes only part of the will in his - YES. If the testator attempts to comply with all the
handwriting and other parts are not so written, requisites, although compliance is not literal, it is sufficient if
the ENTIRE will is void because the article the objective or purpose sought to be accomplished by such
would be violated. requisite is actually attained by the form followed by the
testator.
2. DATED BY HIM - SC found no evidence of bad faith and fraud in the execution
of the will, nor was there substitution of wills. Neither is there
Date – Specification or mention, in a written
any question as to the genuineness and due execution of
instrument, of the time [day, month and year]
the will.
it was made [executed]. – Black’s Law - The objection put forth by Henson is too technical to be
Dictionary entertained.
As a general rule, the date in a holographic - GR: The date in a holographic will should include the day,
will should include the day, month, and year month and year of execution.
of its execution. However, when there is no - E: In the absence of appearance of fraud, bad faith, undue
appearance of fraud, bad faith, undue influence, and pressure and the authenticity of the will is
influence and pressure and the authenticity of established, and the only issue is the validity of the date
the Will is established and the only issue is “FEB.61” appearing on the will, the probate should be
whether or not the date FEB./61 is a valid allowed under the principle of substantial compliance.
compliance, probate of the holographic will
should be allowed under the principle of
substantial compliance. Labrador v. CA
A complete date is required to provide against
such contingencies as – - Melecio died leaving behind a parcel of land to his heirs.
a) Two competing wills executed on the However, during probate proceedings, Jesus and
same day, or Gaudencio filed an opposition on the ground that the will has
b) Of a testator becoming insane in the been extinguished by implication of law alleging that before
Melecio’s death, the land was sold to them evidenced by
day on which a will was executed.
TCT No. 21178. Jesus eventually sold it to Navat.
The law does not specify a particular location - Trial court admitted the will to probate and declared the TCT
where the date should be placed in the will. null and void. However, the CA on appeal denied probate on
The only requirements are that the date be in the ground that it was undated.
the will itself and executed in the hand of the
testator. Whether or not the alleged holographic will is dated, as
provided for in Article 810 of the Civil Code
3. SIGNED BY TESTATOR - SC held that it is dated because:
Must signature be at the will’s end [at least - The law does not specify a particular location where the date
the logical end]? YES, article 812 seems to should be placed in the will. The only requirements are that
imply this.
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the date be in the will itself and executed in the hand of the In the case of ordinary wills, it would be more
testator. difficult to convince 3 witnesses plus the notary to
- The intention to show March 17 1968 as the date of the deliberately lie.
execution is plain from the tenor of the succeeding words of Considering the holographic will may consist of 2-3
the paragraph. It states that “this being in the month of pages and only one of them need be signed, the
March 17th day, in the year 1968, and this decision and or substitution of the unsigned pages may go
instruction of mine is the matter to be followed. And the one undetected.
who made this writing is no other than Melecio Labrador,
In the case of a lost ordinary will, the 3 subscribing
their father.”
witnesses would be testifying as to a FACT which
- This clearly shows that this is a unilateral act of Melecio who
plainly knew that he was executing a will. they saw, namely the act of the testator of
- Article 810 of the Civil Code subscribing the will. Whereas in the case of a lost
holographic will, the witnesses would testify as to
their OPINION of the handwriting which they
allegedly saw, an opinion which cannot be tested in
ART. 811. In the probate of a holographic will, it court nor directly contradicted by the oppositors
shall be necessary that at least one witness because the handwriting itself is not at hand.
who knows the handwriting and signature of
the testator explicitly declare that the will and EXCEPTION – may be proved by a photographic or
the signature are in the handwriting of the photostatic copy, even a mimeographed or carbon
testator. If the will is contested, at least three copy, or by other similar means, if any, whereby the
of such witnesses shall be required. authenticity of the handwriting of the deceased may be
In the absence of any competent witness exhibited and tested before the probate court.
referred to in the preceding paragraph, and if
CASES
the court deem it necessary, expert testimony Azaola v. Singson
may be resorted to,
- The subject of this case is the holographic will of Fotunata
Article applies only to POST MORTEM probates, it Yance.
does not apply to Ante Mortem probates since in such - Francisco Azaola submitted the said holographic will
cases the testator himself files the petition and will whereby Maria Azaola was made the sole heir of the
identify the document itself. deceased.
- The probate of the will is contested on the ground that the
The three witness provision in case of contested will was executed under undue influence, that the document
holographic wills is DIRECTORY, not mandatory. was not intended to be the will of the deceased and that the
Testamentary wills – mandatory proponent of the will failed to present at least three
Holographic wills – directory witnesses who could declare the will and the signature
therein to be in the writing of the testatrix.
- In this case, the proponent of the will only presented one
Witnesses must:
witness to prove that the body of and signature in the will
1. Know the handwriting and signature of the
was that of the testator
testator
2. Truthfully declare that handwriting and Whether or not the three-witness rule is mandatory and
signature is that of the testator applicable in this case
- The SC held that the petitioner is not bound to produce more
In the probate of a holographic will, the document itself than one witness as the authenticity of the will is not in
must be produced. Therefore, a holographic will cannot question.
be probated. - Granting also that the genuineness of the will is contested,
the provision of Art 811 should not be interpreted to require
The execution and contents of a lost or destroyed the compulsory presentation of the three witnesses.
holographic will MAY NOT BE PROVED by the bare - First, it should be noted that in holographic wills, no witness
testimony of witnesses who have seen and/or read is required in the execution thereof, thus the existence of the
such will. However, attested wills MAY BE PROVED by witnesses possessing the requisite qualifications is a matter
testimonial evidence. beyond the control of the proponent.
Why the difference in rules? - Second, the law itself contemplates a situation where no
Because of the nature of the wills. In holographic competent witness can be produced thus allowing the court
to resort to expert evidence to supply the deficiency.
wills, the only guarantee of authenticity is the
- To clarify further, the option to require expert evidence
handwriting itself. In attested wills, the testimony of
depends on the discretion of the court. If the court is
subscribing or instrumental witnesses and of the convinced by the testimony of the witnesses, it may no
notary guarantees authenticity of the will. longer ask for expert evidence. However, if there is no
Loss of the holographic will entails loss of the only competent witness or if those produced were not convincing,
medium of proof while loss of the ordinary will the court may accordingly call for expert evidence.
leaves the subscribing witnesses available to - Thus, the case is remanded to allow the parties to adduce
authenticate. additional evidence including expert testimony.
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- Art 811 requiring three witnesses in the probate of a Whether or not the witnesses sufficiently establish the
contested holographic will is merely directive and not authenticity and due execution of the deceased’s holographic
mandatory. will.
- NO. We cannot be certain that the holographic will was in
Codoy v. Calugay the handwriting of the deceased.
- The clerk of court was not presented to declare explicitly that
- On 6 April 1990, Evangeline Calugay, Josephine Salcedo the signature appearing in the holographic will was that of
and Eufemia Patigas, devisees and legatees of the the deceased.
holographic will of the deceased Matilde Seño Vda. de - The election registrar was not able to produce the voter’s
Ramonal, filed a petition for probate of the said will. affidavit for verification as it was no longer available.
- They attested to the genuineness and due execution of the - The deceased’s niece saw pre-prepared receipts and letters
will on 30 August 1978. of the deceased and did not declare that she saw the
- Eugenio Ramonal Codoy and Manuel Ramonal filed their deceased sign a document or write a note.
opposition claiming that the will was a forgery and that the - The will was not found in the personal belongings of the
same is even illegible. deceased but was in the possession of the said niece, who
- They raised doubts as regards the repeated appearing on kept the fact about the will from the children of the
the will after every disposition, calling the same out of the deceased, putting in issue her motive.
ordinary. - Evangeline Calugay never declared that she saw the
- If the will was in the handwriting of the deceased, it was decreased write a note or sign a document.
improperly procured. - The former lawyer of the deceased expressed doubts as to
- Evangeline Calugay, etc. presented 6 witnesses and various the authenticity of the signature in the holographic will.
documentary evidence. - (As it appears in the foregoing, the three-witness
- The first witness was the clerk of court of the probate court requirement was not complied with.)
who produced and identified the records of the case bearing - A visual examination of the holographic will convinces that
the signature of the deceased. the strokes are different when compared with other
- The second witness was election registrar who was made documents written by the testator.
to produce and identify the voter’s affidavit, but failed to as - The records are remanded to allow the oppositors to
the same was already destroyed and no longer available. adduce evidence in support of their opposition.
- The third, the deceased’s niece, claimed that she had - The object of solemnities surrounding the execution of wills
acquired familiarity with the deceased’s signature and is to close the door against bad faith and fraud, to avoid
handwriting as she used to accompany her in collecting substitution of wills and testaments and to guaranty their
rentals from her various tenants of commercial buildings and truth and authenticity. Therefore, the laws on this subject
the deceased always issued receipts. should be interpreted in such a way as to attain these
- The niece also testified that the deceased left a holographic primordial ends. But, on the other hand, also one must not
will entirely written, dated and signed by said deceased. lose sight of the fact that it is not the object of the law to
- The fourth witness was a former lawyer for the deceased in restrain and curtail the exercise the right to make a will.
the intestate proceedings of her late husband, who said that - However, we cannot eliminate the possibility of a false
the signature on the will was similar to that of the deceased document being adjudged as the will of the testator, which is
but that he can not be sure. why if the holographic will is contested, the law requires
- The fifth was an employee of the DENR who testified that three witnesses to declare that the will was in the
she was familiar with the signature of the deceased which handwriting of the deceased.
appeared in the latter’s application for pasture permit. - Article 811, paragraph 1. provides: “In the probate of a
- The fifth, respondent Evangeline Calugay, claimed that holographic will, it shall be necessary that at least one
she had lived with the deceased since birth where she had witness who knows the handwriting and signature of the
become familiar with her signature and that the one testator explicitly declare that the will and the signature are
appearing on the will was genuine. in the handwriting of the testator. If the will is contested, at
- Codoy and Ramonal’s demurrer to evidence was granted by least three of such witnesses shall be required.”
the lower court. It was reversed on appeal with the Court of - The word “shall” connotes a mandatory order, an imperative
Appeals which granted the probate. obligation and is inconsistent with the idea of discretion and
that the presumption is that the word “shall”, when used in a
Whether or not Article 811 of the Civil Code, providing that at statute, is mandatory.
least three witnesses explicitly declare the signature in a
contested will as the genuine signature of the testator, is Gan v. Yap
mandatory or directory.
- YES. The word “shall” connotes a mandatory order, an - On November 20, 1951, Felicidad Esguerra Alto Yap died of
imperative obligation and is inconsistent with the idea of heart failure in the UST hospital leaving properties in
discretion and that the presumption is that the word “shall”, Bulacan and in Manila.
when used in a statute, is mandatory. - On March 17, 1952, Fausto E. Gan initiated these
- In the case at bar, the goal to be achieved by the law, is to proceedings in CFI Manila for probate the holographic will
give effect to the wishes of the deceased and the evil to be executed allegedly by the deceased.
prevented is the possibility that unscrupulous individuals - In opposition to said proceedings, the surviving husband
who for their benefit will employ means to defeat the wishes Ildefonso Yap asserted that the deceased had not left any
of the testator. will, nor executed any testament during her lifetime.
- The paramount consideration in the present petition is to - After hearing the parties, the court refused to probate the
determine the true intent of the deceased. alleged will. The will itself was not presented.
- Sometime in 1950, Felicidad Esguerra mentioned to her first
cousin Vicente Esguerra her desire to make a will. However,
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she wanted it to be a secret because she said that it would - Pursuant to Article 811 of the Civil Code, probate of
be useless if her husband discovered or knew about it. holographic wills is the allowance of the will by the court
- So Vicente consulted with the nephew of Felicidad and after its due execution has been proved.
found out that it could be done provided that the document - The probate may be uncontested or not. If uncontested, at
was entirely in her handwriting, signed and dated by her. least one identifying witness is required and, if no witness is
- As a result of this, Felicidad proceeded with the making of available, experts may be resorted to. If contested, at least
her will. Though it was a secret, she would show people who three identifying witnesses are required.
would visit her will. - However, if the holographic will has been lost or destroyed
- After evaluating the pieces of evidence presented before the and no other copy is available, the will can not be probated
court, the trial judge had to accept the oppositor’s evidence because the best and only evidence is the handwriting of the
that Felicidad did not and could not have executed such testator in said will. It is necessary that there be a
holographic will. comparison between sample handwritten statements of the
- Hence this appeal. testator and the handwritten will.
- But, a photostatic copy or xerox copy of the holographic will
WON, a lost holographic will can be admitted to probate. may be allowed because comparison can be made with the
- No. Articles 810-814 govern holographic wills. It is stated standard writings of the testator. Even a mimeographed or
that, “A person may execute a holographic will which must carbon copy; or by other similar means, if any, whereby the
be entirely written, dated and signed by the hand of the authenticity of the handwriting of the deceased may be
testator himself. It is subject to no other form and may be exhibited and tested before the probate court, may be
made in our out of the Philippines, and need not be allowed.
witnessed.” - If the holographic will has been lost or destroyed and no
- Unlike ordinary wills, holographic wills need not observe the other copy is available, the will can not be probated
rules laid down in Art. 805 for its compliance with the law. As because the best and only evidence is the handwriting of the
long as it is written entirely, dated and signed by the testator testator in said will.
himself, then it will be sufficient proof that it has been
executed in accordance with law.
- However, witnesses may be brought in so as to verify that ART. 812. In holographic wills, the dispositions of
the will and the signature are in the handwriting of the
testator. The witnesses so presented do not need to have
the testator written below his signature must
seen the execution of the holographic will. be dated and signed by him in order to make
- In the case hand however, the will holographic will was not them valid as testamentary dispositions.
presented to the court. Obviously, when the will itself is not
submitted, these means of opposition and, of assessing the ART. 813. When a number of dispositions
evidence are not available. And then the only guaranty of appearing in a holographic will are signed
authenticity – the testator’s handwriting – has disappeared.
- It is therefore to be concluded that the execution and the without being dated, and the last disposition
contents of a lost or destroyed holographic will may not be has a signature and a date, such date
proved by the bare testimony of witnesses who have seen validates the dispositions preceding it,
and/ or read such will. whatever be the time of prior dispositions.
- This is because the only guaranty of the authenticity is the
handwriting itself. The loss of the holographic will entails the Formal Requirements for Additional Dispositions in a
loss of the only medium of proof.
Holographic Will
- That even if oral testimony were admissible to establish and
1. Signature
probate a lost holographic will, the evidence submitted by
2. Date
the petitioner is so tainted with improbabilities and
inconsistencies that it fails to measure up to that clear and
distinct proof required by Rule 77. When there are Several Additional Dispositions
- Rejection of the alleged will must be sustained 1. Signature and date, or
- The execution and the contents of a lost or destroyed 2. Each additional disposition signed and
holographic will may not be proved by bare testimony of undated, but the last disposition signed and
witnesses who have seen and/or read such will. The will dated.
itself must be presented; otherwise, it shall produce no
effect. The law regards the document itself as material proof NOTES
of authenticity. 1. If several additional dispositions, each of which
is dated, but only the last is dated and signed,
Rodelas v. Aranza then only the last additional disposition is valid.
2. If additional dispositions before the last are not
- The probate court ordered the dismissal of Rodelas’ petition signed and not dated, but the last disposition is
for the allowance of the holographic will of deceased signed and dated, what happens to the
Ricardo B. Bonilla on the ground that the alleged photostatic intermediate ones?
copy of the will which was presented for probate, cannot If made on one occasion – last disposition
stand in lieu of the lost original, for the law regards the
signed and dated validates all.
document itself as the material proof of the authenticity of
the said will. If on different occasions – intermediate
additions are void.
Whether a holographic will which was lost or can not be found But distinction is practically worthless
can be proved by means of a photostatic copy because circumstances of execution of
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holographic wills are often difficult to enough that the testator manifest his intent – he must manifest in a
prove. manner required by law.
ART. 814. In case of any insertion, cancellation, ART. 815. When a Filipino is in a foreign country,
erasure or alteration in a holographic will, the he is authorized to make a will in any of the
testator must authenticate the same by his forms established by the law of the country in
full signature. which he may be. Such will may be probated
in the Philippines.
Full signature does not mean testator’s full name, only
his usual and customary signature. ART. 816. The will of an alien who is abroad
Effect of non-compliance – the change [insertion, produces effect in the Philippines if made
cancellation, etc.] is simply considered NOT MADE. with the formalities prescribed by the law of
The will is not thereby invalidated as a whole, but at the place in which he resides, or according to
most only as regards the particular words erased, the formalities observed in his country, or in
corrected or inserted UNLESS the portion involved is
conformity with those which this Code
an essential part of the will, such as the date.
prescribes.
CASE
Kalaw v. Relova ART. 817. A will made in the Philippines by a
citizen or subject of another country, which is
- Natividad Kalaw left a holographic will. It is not contested executed in accordance with the law of the
that the will was in her handwriting as certified by the NBI. country of which he is a citizen or subject,
The will however has alterations/insertions. The will
and which might be proved and allowed by
originally named Rosa, the decedent’s sister as her sole heir
and administrator, but this was crossed out and changed to the law of his own country, shall have the
her brother Gregorio. Such alteration was however not same effect as if executed according to the
authenticated by the full signature of the decedent. laws of the Philippines.
- Hence, the will was denied probate by the trial court
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When the acts referred to are executed before the goes to the survivor, may be tempted to kill or
diplomatic or consulate officials of the Republic of the dispose of the other.
Philippines in a foreign country, the solemnities In Germany, joint wills are allowed but only between
established by Philippine laws shall be observed in spouses.
their execution.
Prohibitive laws concerning persons, their acts or
property and those which have for their object public ART. 819. Wills, prohibited by the preceding
order, public policy and good customs shall not be article, executed by Filipinos in a foreign
rendered ineffective by laws or judgments promulgated
country shall not be valid in the Philippines,
or by determinations or conventions agreed upon in a
foreign country. even though authorized by the laws of the
country where they may have been executed.
LEX LOCI CELEBRATIONIS – contracts, wills and
other public instruments follow the formalities of the
law where they are executed. Outline on Joint Wills
1. By Filipinos in the Philippines – VOID Art818
Every testator, whether Filipino or Alien, wherever he 2. Filipinos Abroad – VOID Art819, even if allowed
may be, has five choices as to what law to follow for the by law in place of execution. This is an
form of his will: exception to the permissive provisions of
1. Law of his Citizenship – Arts 816-817 for Aliens, Arts17 and 815.
Art15 for Filipinos 3. Aliens Abroad – VALID, Art816
2. Law of place of Execution – Art17 4. Aliens in Philippines – Controverted, on one view
3. Law of Domicile – Art816 for aliens abroad, it is void because of public policy, another
applying to aliens in the Philippines view says it is valid because Art817
and to Filipinos by analogy governs.
4. Law of Residence - Art816 for aliens abroad, 5. Filipino and Alien – Always VOID as to the
applying to aliens in the Philippines Filipino, but either #3 or #4 governs,
and to Filipinos by analogy depending if he is abroad or in the Phils.
5. Philippine Law – Arts 816-817 for aliens, Art15 for
Filipinos by analogy Cases for Arts. 810-819
Ajero v CA
ART. 818. Two or more persons cannot make a
- The holographic will of Annie San was submitted for
will jointly, or in the same instrument, either probate.
for their reciprocal benefit or for the benefit of - Private respondent opposed the petition on the grounds that:
a third person. neither the testament’s body nor the signature therein was in
decedent’s handwriting; it contained alterations and
JOINT WILL – one document which constitutes the wills corrections which were not duly signed by decedent; and,
of two or more individuals. the will was procured by petitioners through improper
If there are separate documents, each serving as one pressure and undue influence.
independent will even if written on the same sheet, they - The petition was also contested by Dr. Ajero with respect to
are not joint wills prohibited by the article. the disposition in the will of a house and lot. He claimed that
said property could not be conveyed by decedent in its
Reason for Prohibition of Joint Wills entirety, as she was not its sole owner.
- However, the trial court still admitted the decedent’s
1. Limitation on modes of revocation
holographic will to probate.
One of the testators would not be able to - The trial court held that since it must decide only the
destroy the document without also revoking it question of the identity of the will, its due execution and the
as the will of the other testator, or in any testamentary capacity of the testatrix, it finds no reason for
even, as to the latter, the problem of the disallowance of the will for its failure to comply with the
unauthorized destruction would come in formalities prescribed by law nor for lack of testamentary
2. Diminution of testamentary secrecy capacity of the testatrix.
3. Danger of undue influence - On appeal, the CA reversed said Decision holding that the
4. Danger of one testator killing the other decedent did not comply with Articles 313 and 314 of the
When a will is made jointly or in the same NCC. It found that certain dispositions in the will were either
instrument, the spouse who is more dominant unsigned or undated, or signed by not dated. It also found
is liable to dictate the terms of the will for his that the erasures, alterations and cancellations made had
or her own benefit or for that of the third not been authenticated by decedent.
persons whom he or she desires to favor. - Hence, this appeal.
Where the will is not only joint but reciprocal,
Whether the CA erred in holding that Articles 813 and 814 of
either one of the spouses who may happen to
the NCC were not complies with.
be unscrupulous, wicked, faithless or - YES. The SC reversed the decision of CA.
desperate, knowing as he or she does the - A reading of Article 813 shows that its requirement affects
terms of the will whereby the whole property the validity of the dispositions contained in the holographic
of the spouses both conjugal and paraphernal
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will, but not its probate. If the testator fails to sign and date (2) Those who have been convicted of
some of the dispositions, the result is that these dispositions falsification of a document, perjury or
cannot be effectuated. Such failure, however, does not
false testimony.
render the whole testament void.
- Likewise, a holographic will can still be admitted to probate
notwithstanding non-compliance with the provisions of SIX QUALIFICATIONS OF WITNESSES
Article 814. 1. Of Sound Mind
- Unless the authenticated alterations, cancellations or 2. At Least 18 years of age
insertions were made on the date of the holographic will or 3. Not Blind, Deaf or Dumb
on testator’s signature, their presence does not invalidate 4. Able to read and write
the will itself. The lack of authentication will only result in 5. Domiciled in the Philippines
disallowance of such changes. 6. Must not have been convicted of falsification of
- It is also proper to note that he requirements of a document, perjury or false testimony.
authentication of changes and signing and dating of
dispositions appear in provisions (Article 813 and 814) As to applicability to wills executed abroad, testator may
separate from that which provides for the necessary resort to either executing a holographic will or following
conditions for the validity of the holographic will (Article 810). the law of the place of execution, if no such witnesses
- This separation and distinction adds support to the are readily available.
interpretation that only the requirements of Article 810 of the
NCC – and not those found in Articles 813 and 814 – are Competence v. Credibility
essential to the probate of a holographic will. The competency of a person to be an instrumental
- Section 9, Rule 76 of the Rules of Court and Article 839 of
witness to a will is determined by the statute under
the Civil Code enumerate the grounds for disallowance of
Arts 820-821, whereas his credibility depends on
wills. These lists are exclusive; no other grounds can serve
to disallow a will. the appreciation of his testimony and arises from
- In a petition to admit a holographic will, the only issues to be the belief and conclusion of the Court that said
resolved are: witness is telling the truth.
o whether the instrument submitted is,
indeed, the decedent’s last will and
testament; CASES
o whether said will was executed in Gonzales v. CA
accordance with the formalities prescribed
by law; - Santiago filed a petition with the CFI for the probate of the
o whether the decedent had the necessary will allegedly executed by the deceased Gabriel.
testamentary capacity at the time the will - Gonzales opposed the probate. Among other grounds, she
was executed; and contends that the witnesses who attested to the due
o whether the execution of the will and its execution of the will were not qualified witnesses.
signing were the voluntary acts of the - She argues that the requirement in Art. 806 of the NCC that
decedent. the witness must be credible is an absolute requirement
- The object of the solemnities surrounding the execution of which must be complied with before a last will and testament
wills is to close the door against bad faith and fraud; may be admitted.
accordingly, laws on this subject should be interpreted to - She claims that to be ca credible witness, there must be
attain these primordial ends. evidence on record that the witness has good standing in
- In the case of holographic wills, what assures authenticity is the community, or that he is honest and upright, or reputed
the requirement that they be totally authographic or to be trustworthy and reliable.
handwritten by the testator himself. Failure to strictly - Gonzales further contends that “credible” is not synonymous
observe other formalities will no result in the disallowance of with “competent” because a witness may be competent
a holographic will that is unquestionable handwritten by the under Arts. 820 and 821 of the NCC, and still not credible as
testator. required by Art. 805.
- She further asserts that “credible” in the NCC should receive
the same well-settled meaning it has under the
Subsection 4 – Witnesses to Wills Naturalization Law.
ART. 820. Any person of sound mind and of the WON the witnesses who attested to Gabriel’s will are qualified
age of eighteen years or more, and not blind, to be such.
deaf or dumb, and able to read and write, may - YES. It is enough that the qualifications in Art. 820 are
complied with, such that the soundness of his mind can be
be a witness to the execution of a will
shown by or deduced from his answers to questions
mention in Article 805 of this Code. propounded to him. And hi age is proven as well as the fact
that he is not deaf and dumb and that he is able to read and
ART. 821. The following are disqualified from write, and that he is not disqualified under Art. 821.
being witnesses to a will: - There is no mandatory requirement that the witness testify
(1) Any person not domiciled in the initially or at any time during the trial as to his good standing
in the community, his reputation or trustworthiness and
Philippines reliability.
- His honesty and uprightness in order that his testimony may
be believed and accepted by the trial court.
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- The contention that the term “credible” should be given the Disqualification applies only to the testamentary
same meaning as that in the Naturalization Law is disposition made in favor of the witness or the specified
untenable. In naturalization proceedings, the character relatives. If the party is also entitled to a legitime or an
witnesses must prove their good standing, reputation and intestate share, that portion is not affected by the
reliability. party’s witnessing the will.
- In probate proceedings, the instrumental witnesses are not
character witnesses for they merely attest the execution of a Question – Supposing there are 4 witnesses, each a
will or testament and affirm the formalities attendant to said
recipient of a testamentary disposition, are the
execution.
dispositions to them valid or void?
- Art. 820, NCC: Any person of sound mind and of the age of
18 years or more, and not blind, deaf or dumb, and able to Arguable
read and write, may be a witness to the execution of a will May say that dispositions are VALID because
mentioned in Art. 805. the law only requires that there be 3 other
- Art. 821, NCC: The following are disqualified from being competent witnesses to such will for the
witnesses to a will: disposition to be valid. For the witnesses to be
1. Any person not domiciled in the Philippines competent, they need only meet the
2. Those who have been convicted of falsification of a qualifications in Art820 and have none of the
document, perjury or false testimony. disqualifications in Art821.
(Other assignments of error discussed in the case are factual. May also say that dispositions are INVALID
SC did not reverse the findings of the CA.) because the intent of the law is to avoid
witnesses from attesting to the will based on the
dispositions as a consideration for such act. If
all of the witnesses are recipients of
ART. 822. If the witnesses attesting the execution testamentary dispositions, then there is greater
of a will are competent at the time of chance that they are all witnessing because a
attesting, their becoming subsequently consideration has been given to them.
incompetent shall not prevent the allowance
of the will.
ART. 824. A mere charge on the estate of the
As in the case of testamentary capacity under Art801, testator for the payment of debts due at the
the time of the execution of the will is the only relevant time of the testator’s death does not prevent
temporal criterion in the determination of the his creditors from being competent witnesses
competence of the witnesses. to his will.
Article is misplaced here because it talks about ART. 826. In order that a codicil may be effective,
CAPACITY TO SUCCEED and not capacity to be a it shall be executed as in the case of a will.
witness.
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A will is void as to form if it does not comply with the 2. HOLOGRAPHIC WILL
requirements of Arts804-818; 810-814; 818-819. a. Must be entirely written
b. Executed in a language or dialect known to testator
c. Dated by the testator
d. Signed by the hand of the testator himself
e. Witnesses required
RE-CAP OF FORMAL REQUIREMENTS a) Knows the handwriting and signature of the
OF A WILL testator
b) Explicitly declares that the will and the
1. ATTESTED/ORDINARY WILL signature are in the handwriting of the testator
a. Must be in writing f. Dispositions below testator’s signature must also be
dated and signed.
b. Executed in a language or dialect known to testator
g. When several additional dispositions are signed but
c. Subscribed by the testator or his agent in his not dated, the last disposition must be signed and
presence and by his express direction at the end dated to validate the dispositions preceding it.
thereof, in the presence of the witnesses h. Any insertion, cancellation, erasure or alteration must
d. Attested and subscribed by at least 3 credible be authenticated by the testator’s full signature,
witnesses in presence of the testator & of one otherwise it shall be deemed as not made.
another i. Prohibition on joint wills, especially by Filipinos even if
executed in a foreign country where joint wills are
e. Testator, or his agent, must sign every page, allowed.
except the last, on the left margin in the presence
of the witnesses
f. The witnesses must sign every page, except the
last, on the left margin in the presence of the
If the testator wishes to Republish a will that is either:
testator and of one another.
1. VOID for a reason other than a formal defect,
g. All pages numbered correlatively in letters on the or
upper part of each page.
2. Previously REVOKED
h. Attestation clause, stating: The only thing necessary to republish it is for the
a) Number of pages of the will testator to execute a subsequent will or codicil
b) Fact that the testator or his agent under his
referring to the previous will. There is no need to
express direction signed the will and every
page thereof, in the presence of the witnesses reproduce the provisions of the prior will in the
c) Fact that the witnesses witnessed and signed subsequent instrument.
the will and every page thereof in the
presence of the testator and of one another. Why the difference on the rules between nullity as to
i. Acknowledgement before a notary public by the form and nullity based on other grounds? Prof. Balane
testator and the witnesses. says because Art835 is from Argentine Law whole
j. Handicapped Testator Art836 is from California Law. Go figure.
a) Deaf or deaf-mute – personally read the will if
able to do so, otherwise designate 2 persons
to read and communicate it to him.
b) Blind – read to him twice, once by a
subscribing witness and another time by the
notary before whom it is acknowledged.
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EXCEPTION – when the second will is holographic and - On 27 July 1918, Miguel Mamuyac of Agoo, La Union
it is revoked by physical destruction, because then the executed a last will and testament.
possibility of its probate is foreclosed, unless of course - After his death, Francisco Gago asked the court for the
a copy survives. probate of the will but was opposed by Cornelio Mamuyac,
Ambrosio Lariosa, Feliciano Bauzon, and Catalina
Cases for Arts. 828-837 Mamuyac.
- After the probate of the said will was denied, another will
Molo v. Molo alleged to have been executed on 16 April 1919 was
presented for probate to which the same oppositors resisted.
- The oppositors argued that such will was not the original and
- Mariano Molo died and was survived by his herein petitioner
was a mere copy; that the same had been cancelled and
wife and his herein oppositors nieces and nephews. He left
revoked by the testator; and that the same was not the last
two wills one dated 1918 and the other 1939. The 2nd will
will and testament of Mamuyac.
contains a clause which expressly revokes the former will.
- The probate of the second will was likewise turned down for
- Upon death, his wife filed a petition for probate of the 1939
having been cancelled and revoked.
will which was later on admitted. However, oppositors
- According to witnesses, the original of the said will was in
eventually filed a petition which resulted to the denial of
the possession of Mamuyac before his death who revoked
probate of the said will. Petitioner wife then filed a petition
the same.
for probate of the 1918 will, which was likewise denied by
the oppositors in this case.
WON Miguel Mamuyac’s last will has indeed been cancelled
and revoked and therefore not admissible to probate.
Whether or not petitioner voluntarily and deliberately frustrated
- YES. There is positive proof, not denied, that the will in
the probate of the 1939 will.
question had been cancelled in 1920.
- SC held that she did not because if it was indeed her
- The law does not require any evidence of the revocation or
intention, she could have accomplished her desire by merely
cancellation of a will to prove the same.
suppressing the will or tearing or destroying it, and then take
steps in leading to the probate of the 1918 will.
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WON, the will executed by the Jesus de Leon, now deceased, Rules on Probate for both post and ante mortem are
was revoked by him. found in Rule 76 of the Rules of Court.
- The court finds that the will executed by the deceased is not
clothed with all the necessary requisites to constitute a Finality of a Probate Decree
sufficient revocation. Once a decree of probate becomes final in
- But according to the statute governing the subject in this accordance with the rules of procedure, it is res
jurisdiction, the destruction of a will with animo revocandi judicata.
constitutes, in itself, a sufficient revocation.
- From the evidence presented, the decedent asked that the
Scope of a Final Decree of Probate
same be returned to him.
- The instrument was returned to the testator who ordered his
A final decree of probate is conclusive as to the
servant to tear the document. This was done in his presence due execution of the will, i.e. as to the will’s
and before a nurse who testified to this effect. extrinsic and formal validity only.
- The intention of revoking the will is manifest from the
established fact that the testator was anxious to withdraw or
change the provisions he has made in his first will.
- The original will herein presented for probate having been
destroyed with animo revocandi cannot now be probated as
the will and last testament of Jesus de Leon.
- Judgment affirmed.
- The destruction of a will with animo revocandi constitutes, in
itself, a sufficient revocation.
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- When the same was heard, the CFI declared the will void for executed the will and was not acting under duress, menace,
being executed contrary to the prohibition on joint wills. On fraud, or undue influence; that the will was signed by him in
appeal, the order was reversed. the presence of the required number of witnesses, and that
the will is genuine.
Whether or not the will may be probated - Accordingly, these facts cannot again be questioned in a
- Admittedly the probate of the will in 1939 was erroneous, subsequent proceeding, not even in a criminal action for the
however, because it was probated by a court of competent forgery of the will.
jurisdiction it has conclusive effect and a final judgment - After the finality of the allowance of a will, the issue as to the
rendered on a petition for the probate of a will is binding voluntariness of its execution cannot be raised anymore.
upon the whole world. However, this is only with respect to - The SC also held that the decree of adjudication, having
the estate of the husband but cannot affect the estate of the rendered in a proceeding in rem, is binding upon the whole
wife; considering that a joint will is a separate will of each world. Moreover, the dismissal of the first civil case, which is
testator. a judgment in personam, was an adjudication on the merits.
- The joint will being prohibited by law, its validity, in so far as Thus. It constitutes a bar by former judgment under the
the estate of the wife is concerned, must be reexamine and Rules of Court.
adjudicated de novo. - The SC also held that the lower court erred in saying that
- The undivided interest of the wife should pass upon her the action for the recovery of the lands had not prescribed.
death to her intestate heirs and not to the testamentary heir. The SC ruled that the Art. 1410 of NCC (the action or
Thus as to the disposition of the wife, the will cannot be defense for the declaration of the inexistence of a contract
given effect. does not prescribe) cannot apply to last wills and
- A decree of probate decree is conclusive on the due testaments.
execution and the formal validity of the will subject to such - The Rules of Court does not sanction an action for
probate. “annulment” of a will.
- A final decree of probate is conclusive as to the due
Gallanosa v. Arcangel execution of the will.
- A decree of adjudication in a testate proceeding is binding
- Florentino Hitosis was a childless widower and was survived on the whole world.
by his brother Lito. - After the period for seeking relief from a final order or
- In his will, Florentino bequeathed his ½ share in the conjugal judgment under Rule 38 of the Rules of court has expired, a
estate to his second wife, Tecla, and, should Tecla final judgment or order can be set aside only on the grounds
predecease him, as was the case, his ½ share would be of: (a) lack of jurisdiction or lack of due process of law or (b)
assigned to spouses Gallanosa. Pedro Gallanosa was that the judgment was obtained by means of extrinsic or
Tecla’s son by her first marriage who grew up under the collateral fraud. In the latter case, the period for annulling
care of Florentino. His other properties were bequeathed to the judgment is four (4) years from the discovery of fraud.
his protégé Adolfo Fortajada. - The Civil Law rule that an action for declaration of
- Upon his death, a petition for the probate of his will was wile. inexistence of a contract does not prescribe cannot be
Opposition was registered by Florentino’s brother, nephews applied to last wills and testaments.
and nieces.
- After a hearing, where the oppositors did not present any
evidence, the Judge admitted the will to probate. Nepomuceno v. CA
- The testator’s legal heirs did not appeal from the decree of
probate and from the order of partition and distribution. - Martin Jugo died in 1974, leaving a last Will and Testament
- Later, the legal heirs filed a case for recovery of 61 parcels signed by him and 3 other witnesses, in accordance with the
of land against Pedro alleging that they had been in formalities prescribed by the law.
continuous possession of those lands and praying that they - Martin named and appointed Sofia Nepomuceno as his sole
be declared owners thereof. and only executor of his estate.
- Pedro moved for a dismissal which was later granted by the - The will specifically stated that Jugo was legally married to
Judge on the ground of res judicata. Rufina Gomez, by whom he has 2 children. But since 1962,
- The legal heirs did not appeal from the order of dismissal. they have been estranged and Martin had been living with
- 15 years after the dismissal of the first civil case and 28 Sofia as husband and wife. Martin and Sofia were married in
years after the probate of the will, the legal heirs filed a case Tarlac before the Justice of the Peace.
for “annulment of the will” alleging fraud and deceit. - Martin devised to his forced heirs (Rufina and their 2
- The court dismissed said action. However, the court set children) his entire estate, and the free portion thereof to
aside the dismissal after the heirs filed a motion for Sofia.
reconsideration. Hence, this appeal. - Sofia filed a petition for the probate of the last will and
testament of Martin.
Whether the legal heirs have a cause of action for the - Rufina and her children opposed.
“annulment” of the will of Florentino and for the recovery of the - CFI denied probate on the ground that Martin admitted in his
61 parcels of land adjudicated under that will to the petitioners. will that he had been unlawfully cohabiting with Sofia.
- NO. The SC held that the lower court committed a grave - CA reversed and admitted the will to probate, but declared
abuse of discretion in setting aside its order of dismissal and that the devise in favor of Sofia is void.
ignoring the testamentary case and the first civil case which - Sofia contends that the validity of the testamentary provision
is the same as the instant case. It is evident that second civil in her favor should be assailed in another proceeding and
case is barred by res judicata and by prescription. that the only purpose of the probate is to conclusively
- The decree of probate is conclusive as to the due establish that will was executed with the formalities required
execution or formal validity of the will. That means that by law and that the testator has the mental capacity to
the testator was of sound and disposing mind at the time he execute the same.
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WON the probate court validly passed upon the intrinsic GROUNDS FOR DISALLOWANCE OF A WILL
validity of the testamentary provision in favor of Sofia. 1. FORMALITIES
- YES. Those referred to in Articles 804-818, 818-
- The general rule is that in probate proceedings, the court’s 819 and 829-821
area of inquiry is limited to an examination and resolution of
the extrinsic validity of the will. 2. TESTATOR INSANE OR MENTALLY
- Such rule is not inflexible and absolute. Given exceptional INCAPABLE AT TIME OF EXECUTION
circumstances, the probate court is not powerless to pass Articles 798 – 801 on testamentary capacity
upon certain provisions of the will. and intent
- A will no matter how valid it may appear extrinsically may be
void. A separate proceeding to determine its intrinsic validity 3. FORCE, DURESS, INFLUENCE OF
would be superfluous. FEAR OR THREATS
- Sofia cannot claim good faith. She knew that Martin had a Force or Violence – when in order to wrest
pre-existing marriage when they got married. consent, serious or irresistible force is
- Further, donations between persons living in adultery or employed.
concubinage is prohibited by the Civil Code. Duress or Intimidation – when one of the
- GR: In probate proceedings, the probate court is usually contracting parties is compelled by a
limited to an examination and resolution of the extrinsic reasonable and well-grounded fear of
validity of the will. imminent and grave evil upon his person or
- E: For “practical considerations,” the probate court is not property, or upon the person or property of
powerless to pass upon certain provisions of the will even his spouse, descendants or ascendants, to
before it is probated. give his consent. Age, sex and condition of
the person are borne in mind. Threat to
enforce a just or legal claim through
ART. 839. The will shall be disallowed in any of competent authority does not vitiate consent.
the following cases: 4. UNDUE & IMPROPER PRESSURE AND
(1) If the formalities required by law have INFLUENCE
not been complied with; Undue Influence – when a person takes
(2) If the testator was insane, or improper advantage of his power over the will
otherwise mentally incapable of of another, depriving the latter of a
making a will, at the time of its reasonable freedom of choice. Circumstances
execution; such as the following shall be considered:
(3) If it was executed through force or confidential, family, spiritual and other
under duress, or the influence of fear, relations between parties, or fact that person
unduly influenced was suffering from mental
or threats;
weakness or ignorant or in financial distress.
(4) If it was procured by undue and
improper pressure and influence, on 5. SIGNATURE PROCURED THROUGH FRAUD
the part of the beneficiary or of some Fraud – when through insidious words or
machinations of one of the contracting
other person;
parties, the other is induced to enter into a
(5) If the signature of the testator was contract which, without them, he would not
procured by fraud; have agreed to.
(6) If the testator acted by mistake or did
6. MISTAKE OR TESTATOR DID NOT INTENT
not intent that the instrument he
INSTRUMENT TO BE HIS WILL WHEN HE
signed should be his will at the time of AFFIXED HIS SIGNATURE THERETO
affixing his signature thereto. Mistake – must refer to substance of the thing
which is the object of the contract, or to those
An Exclusive Enumeration of the grounds for conditions which have principally moved one
disallowance of a will. or both parties to enter into the contract.
These are matters involved in formal validity. Once a Mistake as to identity or qualifications only
probate decree is final, such decree forecloses any vitiates consent when such were the principal
subsequent challenge on any of the matters cause of the contract. A simple mistake of
enumerated in this article. account gives rise to correction.
If any of these grounds for disallowance are proven, the
will shall be set aside as VOID.
A will is either valid or void. If none of the defects
enumerated in this article are present, it is valid; if
any one of these defects is present, the will is void.
The issue of formal validity or nullity is precisely
what the probate proceedings will determine.
There is no such thing as a Voidable Will.
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SECTION 2 – INSTITUTION OF HEIR ART. 843. The testator shall designate the heir by
his name and surname, and when there are
ART. 840. Institution of heir is an act by virtue of two persons having the same names, he shall
which a testator designates in his will the indicate some circumstance by which the
person or person who are to succeed him in instituted heir may be known.
his property and transmissible rights and Even though the testator may have
obligations. omitted the name of the heir, should he
designate him in such manner that there can
Rules on institution of heir set forth in this section apply be no doubt as to who has been instituted,
as well to institution of Devisees and Legatees. the institution shall be valid.
ART. 842. One who has no compulsory heirs may REQUIREMENT FOR DESIGNATION OF HEIR
dispose by will of all his estate or any part of The heir, legatee or devisee must be identified in
it in favor of any person having capacity to the will with sufficient clarity to leave no doubt
succeed. as to the testator’s intention.
One who has compulsory heirs may The basic rule in testamentary succession always
dispose of his estate provided he does not is respect for and compliance with the testator’s
wishes.
contravene the provisions of this Code with
regard to the legitime of said heirs. The designation of name and surname is DIRECTORY.
What is required is that the identity of the designated
Even if the will does not contain any testamentary successor be sufficiently established. This is usually
disposition, it will be formally valid provided it complies done by giving the name and surname, but there are
with all the formal requisites. This is in keeping with the other ways as can be gleaned from Art843 par2, such
character of wills as dispositive of property under as to one’s ‘eldest first cousin’.
Art783.
If there is any AMBIGUITY in the designation, it should
HOW MUCH CAN BE DISPOSED OF BY WILL? be resolved in light of Art789 – by the context of the will
1. No Compulsory Heirs – Entire hereditary and any extrinsic evidence available, except the
estate testator’s oral declarations.
2. There are Compulsory Heirs – the disposable If it is not possible to resolve the ambiguity, the
portion or the net hereditary estate minus the testator’s intent becomes indeterminable and
legitimes. therefore intestacy as to that portion will result.
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This does not refer to one with whom the testator is not Also, if the testator intends an unequal apportionment,
personally acquainted. The testator may institute he should so specify.
somebody who is a perfect stranger to him, provided
the identity is clearly designated in the will DIFFERENT RULE IN INTESTACY
Art848 only applies to testamentary succession,
wherein siblings, regardless of whether full or half
ART. 846. Heirs instituted without designation of blood, get equal shares except if a different
shares shall inherit in equal parts. intention of the testator appears.
In INTESTACY, the rule is different. The applicable
provision is Art 1006 which establishes a
GENERAL PRESUMPTION proportion of 2:1 between full and half blood
Equality in cases of collective designation.
brothers and sisters, but without prejudice to the
If the testator intends an unequal apportionment,
rule prohibiting succession ab intestato between
he should so specify.
legitimate and illegitimate siblings. [Art992]
The article applies only in testamentary succession, and
only among testamentary heirs or devisees or legatees. Art. 1006. Should brother and sisters of the full blood
It will NOT APPLY to an heir who is both a survive together with brothers and sisters of the half blood,
compulsory and a testamentary heir, for in that the former shall be entitled to a share double that of the latter.
case the heir will get his legitime and his Art. 992. An illegitimate child has no right to inherit ab
testamentary portion. intestate from the legitimate children and relatives of his
Not explicitly covered by this article is an instance father or mother; nor shall such children or relatives inherit in
where the shares of some of the heirs are designated the same manner from the illegitimate child.
and those of others are not.
Example – “I institute to ¼ of my estate A, B, C and RE-CAP
D, of which A will get 1/3 and B is to get ¼.” The Testamentary Succession – equality in shares of
shares of C and D are unspecified. Are they to full and half blood brothers and sisters unless the
divide equally the remaining portion of the ¼ of the testator provides otherwise [Art848]
estate, after deducting A’s and B’s portions [The Intestacy – Proportion of 2:1 between full and half
remainder is 5/12 of ¼?] blood brothers and sisters [Art1006], and only if the
YES, because the article talks about heirs instituted disqualification in Art992 does not apply.
without designation of shares. A and B have been
designated their shares, therefore Art846 applied to Question – Does Art848 apply even to illegitimate
C and D. brothers and sisters, in cases where the testator is of
legitimate status and vice versa? YES. Art848 does not
distinguish.
ART. 847. When the testator institutes some heirs
individually and others collectively as when
he says, “I designate as my heirs A and B, ART. 849. When the testator calls to the
and the children of C,” those collectively succession a person and his children they are
designated shall be considered as all deemed to have been instituted
individually instituted, unless it clearly simultaneously and not successively.
appears that the intention of the testator was
otherwise. Article lays down the same rule as Arts. 846 and 847.
Equality and Individuality of institution are presumed.
Equality and Individuality of Designation If the testator desires a different mode of
This article follows the basic rule of equality in the apportionment, he should so specify.
previous article. In addition, it established the
PRESUMPTION that the heirs collectively referred to
are designated per capita along with those ART. 850. The statement of a false cause for the
separately designated. institution of an heir shall be considered as
If the testator intends a block designation, he should so not written, unless it appears from the will
specify.
that the testator would not have made such
institution if he had known the falsity of such
cause.
ART. 848. If the testator should institute his
brothers and sisters, and he has some of full GENERAL RULE – the falsity of the stated cause for
blood and others of half blood, the the testamentary institution DOES NOT AFFECT the
inheritance shall be distributed equally unless validity or efficacy of the institution.
a different intention appears. Reason – testamentary disposition is ultimately
based on liberality.
Once again, this article follows the general rule of
equality laid down in Art846.
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free portion, each part shall be increased Castan’s Definition – “By preterition is meant the
proportionally. omission in the will of any of the compulsory heirs,
without being expressly disinherited. It is thus a tacit
ART. 853. If each of the instituted heirs has been deprivation of the legitime, as distinguished from
disinheritance, which is an express deprivation.”
given an aliquot part of the inheritance, and
the parts together exceed the whole OMISSION THAT CONSTITUTES PRETERITION
inheritance, or the whole free portion, as the If the heir in question is instituted in the will but the
case may be, each part shall be reduced portion given to him by the will is less than his
proportionally. legitime – there is no preterition.
In the case of Reyes v. Baretto-Datu:
In both articles – 1. There was a compulsory heir in the
1. There are more than 1 instituted heir direct line
2. Testator intended them to get the whole estate 2. Such heir was instituted in the will
or the whole disposable portion 3. The testamentary disposition given
3. Testator designated a definite portion for each. to such heir was less than her
legitime
ART. 852 – the total of all the portions is less than the Based on these, the holding was that there
whole estate or the whole disposable portion. was NO PRETERITION.
Therefore, a proportionate increase is necessary.
The difference cannot pass by intestacy because The reason was there was no TOTAL
the testator’s intention is clear to give the instituted OMISSION, inasmuch as the heir received
heirs the entire amount. something from the inheritance. The heir’s
remedy is not found in Art854 but in Arts.
ART. 853 – the reverse occurs, the total exceeds the 906 and 907 for Completion of Legitime.
whole estate or the whole disposable portion. Thus a Art. 906. Any compulsory heir to whom the
proportionate reduction must be made. testator has left by any title less than the legitime
belonging to him may demand that the same may be
FORMULA FOR PROPORTIONATE INCREASE fully satisfied.
OR DECREASE Art. 907. Testamentary dispositions that impair or
diminish the legitime of the compulsory heirs shall be
P HEIR’S SHARE = X . reduced on petition of the same, insofar as they may
P TOTAL DISPOSED P TOTAL ESTATE DISPOSABLE be inofficious or excessive.
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expressly given in the will. Art854 does not mean - Upon Maria Gerardo’s death, it was discovered that she
that the mere institution of a universal heir in a will executed 2 wills, in the first she instituted both Salud and
– void because of preterition – would give the heir Milagros as heirs and in the second she revoked the same
so instituted a share in the inheritance. As to the and left all her properties to Milagros alone. The 2nd will was
heir, the will is inexistent. probated and it was proved that Salud was not the daughter
In that case, the only provision in the will was the of Maria.
institution of the petitioner a universal heir. That - Having lost her share in the estate of Maria, Salud went after
the remnant of Bibiano’s estate, which was given in usufruct
institution, by itself, was held null and void.
to Maria, by filing an action for the recovery of ½ thereof.
Therefore, intestate succession ensued.
- This action afforded Milagros an opportunity to set up her
right of ownership not only of the fishpond but sought
However, this was muddled in the case of Solano recovery of all the properties acquired by Salud from
v. CA wherein it was ruled that the preterition of Bibiano, because Salud is a spurious heir not entitled to any
illegitimate children should annul the institution of share.
the heir “only insofar as the legitime of the omitted - Milagros also alleged that since what was allotted in her
heirs is impaired”. father’s will to her was smaller than her legitime, then there
Prof. Balane says this is not annulment but is preterition, thus annulling the institution of heirs in the will.
reduction, and this would erase the distinction
between the effect of preterition on the institution of Whether Salud may inherit from Bibiano
the heir and its effect on legacies and devises. - Yes. Salud admittedly has been instituted heir in the
Bibiano’s will together with Milagros. Hence, the partition
Fortunately, this was cleared up in Acain v. CA had between them could not be one such had with a party
wherein it was held that “Preterition annuls the who was not believed to be an heir without really being one,
institution of an heir and annulment throws open to and was not null and void. The legal precept does not
intestate succession the entire inheritance. The speak of children or descendants but of heirs, and the fact
that Salud happened not to be a daughter of the testator
only provisions which do not result in intestacy are
does not preclude her being one of the heirs expressly
the legacies and devises made in the will for they
named in his testament; For Bibiano was at liberty to assign
should stand valid and respected, except insofar as the free portion of his estate to whomsoever he choose.
the legitimes are concerned.” While the ½ share assigned to Salud impinged on the
legitime of Milagros, Salud did not for that reason cease to
RE-CAP – the correct rule of preterition is that: be a testamentary heir of Bibiano.
Preterition abrogates the institution of heir but
respects legacies and devises insofar as these do Whether there was preterition
not impair the legitimes. Thus, if the will contains - None. There was no preterition even if Milagros was allotted
only institutions of heirs and there is preterition, a smaller share than her legitime because there was no total
TOTAL INTESTACY will result. omission of a forced heir.
If there are legacies or devises and there is - If the heir in question is instituted in the will but the portion
preterition, the legacies or devises will stand, to the given to him by the will is less than his legitime, there is no
extent of the free portion [merely to be reduced and preterition.
not set aside, if the legitimes are impaired] but the
institution of heirs, if any, will be swept away. Aznar v. Duncan
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instituted heir should be merely reduced to the extent - Rosa (the widow) and Virginia Fernandez (a legally adopted
necessary to cover the legitime of Garcia, equivalent to ¼ of daughter of Nemesio) opposed the probate.
the entire estate.
- In order that the right of a forced heir may be limited only to WON Rosa and Virginia were preterited.
the completion of his legitime (instead of the annulment of - As to the widow (Rosa), Art. 854 does not apply, although
the institution of heirs) is it necessary that he should be she is a compulsory heir.
recognized or referred to in the will as heir? - Even if the surviving spouse is a compulsory heir, there is no
- The SC set aside the project of partition. It remanded the preterition even if she is omitted from the inheritance, as she
case with instruction to partition the hereditary estate by is not in the direct line.
giving to Garcia no more than the portion corresponding to - As to the adopted child (Virginia), there is preterition since
her legitime, equivalent to ¼ of the hereditary estate. she was totally omitted in the inheritance.
- The case is not a case of preterition but a case of - The Child and Youth Welfare Code gives an adopted
completion of legitime. The institution in the will not be person the same rights and duties as if he were a legitimate
annulled. There would be no intestacy. child of the adopter and makes the adopted person a legal
- The Court mentioned Manresa and 3 decisions of the SC of heir of the adopter.
Spain. In each of those case, the testator left to one who - Since preterition annuls the institution of heir and no devises
was a forced heir a legacy worth less than the legitime, but or legacies having been provided in the will, the probate of
without referring to the legatee as an heir or even as a the will must be denied. An intestate settlement of the estate
relative, and will the rest of the estate to other persons. It should proceed.
was held that in such cases, the heir could not ask that the - Art. 854, NCC: The preterition or omission of compulsory
institution of heirs be annulled entirely, but only that the heirs in the direct line, whether living at the time of the
legitime be completed. execution of the will or born after the death of the testator,
- The Court viewed such as in consonance with the shall annul the institution of heir; but the devises and
expressed wishes of Edward as may be observed from the legacies shall be valid insofar as they are not inofficious.
provisions of his will. He refused to acknowledge Garcia as - Preterition consists in the omission in the testator’s will of
his natural daughter and limited her share to a legacy of Php the forced heirs because they were not mentioned therein,
3600. The fact that she was subsequently declared judicially or though mentioned, they are neither instituted as heirs not
to possess such status is no reason to assume that had the are expressly disinherited.
judicial declaration come during his lifetime his subjective
attitude towards her would have undergone any change and Nuguid v. Nuguid
that he would have will his estate equally to her and to
Duncan, who alone was expressly recognized by him - Rosario Nuguid died, single without descendants but was
- There is no preterition if the heir is given a legacy or devise. survived by her legitimate parents and 6 legitimate siblings.
- Art. 854 of the NCC: The preterition or omission of one, - One of which was instituted as the universal heir and he filed
some, or all of the compulsory heirs in the direct line, an action for probate of the decedent’s will which was
whether living at the time of the execution of the will or born opposed by her parents on the ground that they were
after the death of the testator, shall annul the institution of preterited and thus the institution of the universal heir is
heir; but the devises and legacies shall be valid insofar as void.
they are not inofficious.
- Art. 906 of the NCC: Any compulsory heir whom the testator Whether or not the will is void.
has left by any title less than the legitime belonging to him - YES. SC held that it is because: The will completely omits
may demand that the same be fully satisfied. the parents; thus, depriving them of their legitime. This is a
- Preterition is the omission of the heir in the will, either by clear case of preterition.
not naming him at all or, while mentioning him as father, - Petitioner herein was instituted as the universal heir and no
son, etc., by not instituting him as heir without disinheriting specific legacies or bequests are provided for; hence, nullity
him expressly, nor assigning to him some part of the of the will is complete.
properties. - Even if Art. 1854 provides that notwithstanding the
- Whether the testator gave a legacy to a person, whom he annulment, the devises and legacies shall be valid insofar as
characterized in the testamentary provision as not related to they are not officious, the will is inexistent since there was
him, but later his person was judicially declared to be his no testamentary disposition separate from the nullified
acknowledged natural child, the case is not a case of institution of the heir. Hence, intestate succession ensues.
preterition but a case of completion of legitime. The - This is a case of preterition and not disinheritance since the
institution in the will not be annulled. There would be no will does not expressly disinherits the forced heirs. It simply
intestacy. omits their names.
- To consider the institution of an heir to be the same as
Acain v. IAC legacy will defeat the purpose of Art. 854 on total or partial
nullity.
- Constantino Acain filed with the RTC a petition for the - Preterition "consists in the omission in the testator's will of
probate of the will of the late Nemesio Acain. the forced heirs or anyone of them, either because they are
- In the said will, Nemesio instituted his brother Segundo as not mentioned therein, or, though mentioned, they are
the heir. In case Segundo pre-deceased him, Segundo’s neither instituted as heirs nor are expressly disinherited."
children (Constantino and his brothers & sisters) would Disinheritance, in turn, "is a testamentary disposition
receive Nemesio’s share in the conjugal property of depriving any compulsory heir of his share in the legitime for
Nemesio and Rosa. a cause authorized by law."
- Segundo pre-deceased Nemesio. Now, the children of - Preterition under Article 854 of the Civil Code, we repeat,
Segundo are claiming to be heirs of Nemesio. "shall annul the institution of heir". This annulment is in toto,
unless in the will there are, in addition, testamentary
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Whether or not there was preterition in the deed of extrajudicial Under the old Spanish Code, in addition to the 4
settlement with respect to the retardate Delia Viado. enumerated, there were pupilar and ejemplar
- YES. The exclusion of Delia Viado has the effect of substitutions under Arts. 775 and 776, providing that an
preterition. ascendant or the parent may substitute the descendant
- This kind of preterition, however, in the absence of fraud and below 14 years old in case the descendant should die
bad faith, does not justify a collateral attack on the new title. before age 14; and that a substitute may be designated
- Article 1104 provides the remedy: where the preterition is by an ascendant for a descendant who is over 14 but
not attended by bad faith and fraud, the partition shall not be has been declared incompetent by reason of mental
rescinded but the preterited heir shall be paid the value of incapacity, but such substitution shall be ineffective by a
the share pertaining to her. will executed by the incompetent during a lucid interval
- Article 1104 provides: where the preterition is not attended or after he ahs recovered his mental faculties.
by bad faith and fraud, the partition shall not be rescinded
but the preterited heir shall be paid the value of the share
KINDS OF SUBSTITUTION UNDER ART858
pertaining to her.
1. Simple or Common [vulgar] – Art859
2. Brief or Compendious [brevilocua /
compendiosa] – Art860
SECTION 3 – SUBSTITUTION OF HEIRS 3. Reciprocal [reciproca] – Art861
4. Fideicommissary [fideicomisaria] – Art863
Art. 857. Substitution is the appointment of
another heir so that he may enter into the In reality, there are only 2 kinds of substitutions – the
inheritance in default of the heir originally simple or common and the fideicommissary. These two
instituted. are MUTUALLY EXCLUSIVE, a substitution must be
one or the other and cannot be both at the same time.
Brief or compendious and reciprocal substitutions are
The definition of substitution is incomplete because it
merely variations of either the simple or
covers only simple substitution and excludes the
fideicommissary.
fideicommissary. In the fideicommissary, the 2nd heir
does not succeed in default, but AFTER the first.
The complete definition of substitution should be – ART. 859. The testator may designate one or
“Substitution is the appointment of another heir so that more persons to substitute the heir or heirs
he may enter into the inheritance in default of, or instituted in case such heir or heirs should
subsequent to, the heir originally substituted.” die before him, or should not wish, or should
be incapacitated to accept the inheritance.
With respect to Simple Substitution, this section is A simple substitution, without a statement
properly a part of the next section on conditional
of the cases to which it refers, shall comprise
testamentary dispositions.
Simple substitution is really a form of conditional the there mentioned in the preceding
institution. paragraph, unless the testator has otherwise
The right to provide for substitutions is based on provided.
testamentary freedom.
In simple substitutions, the testator simply makes a This article provides for SIMPLE or VULGAR
second choice, in case the first choice does not inherit. substitution.
In fideicommissary substitutions, the testator imposes
what is essentially a RESTRICTION OR BURDEN on CAUSES OF SIMPLE SUBSTITUTION
the first heir, coupled with a selection of a subsequent 1. Predecease of the first heir
recipient of the property. 2. Renunciation of the first heir
3. Incapacity of the first heir
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If 1 is substituted for 2 or more original heirs – The substitute merely takes the place of the original
Effect of default of one but not all of the original heir, so the former is also subjected to all the liabilities
heirs is that substitution will NOT take place but the as well as rights of the latter, including charges and
share left vacant will accrue to the surviving original conditions imposed upon the original heir.
co-heir or co-heirs.
Substitution will take place only if ALL the
original heirs are disqualified. ART. 863. A fideicommisary substitution by virtue
The exception is where the testator provides for of which the fiduciary or first heir instituted is
substitution in the event of the death or entrusted with the obligation to preserve and
renunciation or incapacity of any one of the original to transmit to a second heir the whole or part
heirs. of the inheritance, shall be valid and shall
take effect, provided such substitution does
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not go beyond one degree from the heir resolutory condition on the part of the
originally instituted, and provided further, that husband while subject to a suspensive
the fiduciary or first heir and the second heir condition on the part of the brothers- and
are living at the time of the death of the sisters-in-law and not a fideicomisaria
because no obligation is imposed upon
testator.
the husband to preserve the estate or any
part thereof for anyone else.
First heir – fiduciary ; Second heir – fideicommissary If the testator DID NOT specify a day
when the fiduciary will deliver the property
ELEMENTS OF FIDEICOMISARIA to the fideicomissary, or when the time of
1. A 1st heir who takes the property upon the delivery is in doubt, it shall be understood
testator’s death to have been left to the fiduciary’s
Fiduciary enters upon the inheritance, like discretion, which means the delivery
every other heir, upon the opening of the should be upon the FIDUCIARY’S
succession, which is when the testator DEATH. This is based on the presumption
dies. that the testator intended the fiduciary to
enjoy the property during his lifetime.
2. A 2nd heir who takes the property subsequently
from the fiduciary 5. Both heirs must be living and disqualified to
The fideicommissary heir does not receive succeed at the time of the testator’s death.
the property until the fiduciary’s right Living – according to Articles 40-41
expires.
BOTH heirs enter into the inheritance, one Art. 40. Birth determines personality; but the conceived child shall be
considered born for all purposes that are favorable to it, provided it
after the other, each in his own turn. This be born later with the conditions specified in the following article.
distinguishes the fideicomisaria from the
vulgar, in which the substitute inherits only Art. 41. For civil purposes, the fetus is considered born if it is alive at the
if the first heir fails to inherit. time it is completely delivered from the mother's womb. However, if
the fetus had an intra-uterine life of less than seven months, it is not
NOTE – though the fideicommissary heir deemed born if it dies within twenty-four hours after its complete
does not receive the property upon the delivery from the maternal womb.
testator’s death, his right thereto VESTS
at that time and merely becomes subject Qualified – according to Articles 1024-
to a period, and that right passes to his 1034.
own heirs should he die before the Art. 1024. Persons not incapacitated by law may succeed by will or ab
fiduciary’s right expires. intestato.
The provisions relating to incapacity by will are equally applicable
3. The 2nd heir must be 1 degree from the first heir to intestate succession.
Means 2 things Art. 1025. In order to be capacitated to inherit, the heir, devisee or legatee
a) Only one transmission/transfer is must be living at the moment the succession opens, except in case
allowed, from the first heir to the of representation, when it is proper.
second heir A child already conceived at the time of the death of the decedent
is capable of succeeding provided it be born later under the
b) Second heir must be in the first conditions prescribed in article 41.
degree of relationship with the first
heir. The second heir must either be Art. 1026. A testamentary disposition may be made to the State, provinces,
municipal corporations, private corporations, organizations, or
a child or parent of the first heir associations for religious, scientific, cultural, educational, or
charitable purposes.
4. Dual obligation imposed upon the 1st heir to: All other corporations or entities may succeed under a will, unless
a) Preserve the property, and there is a provision to the contrary in their charter or the laws of their
b) To transmit it after the lapse of the period to creation, and always subject to the same.
the fideicommissary heir. Art. 1027. The following are incapable of succeeding:
(1) The priest who heard the confession of the testator during his last
This requisite is the essence of the illness, or the minister of the gospel who extended spiritual aid to
fideicomisaria. This makes the position of him during the same period;
the fiduciary basically that of a (2) The relatives of such priest or minister of the gospel within the
usufructuary, with the right to use and fourth degree, the church, order, chapter, community,
enjoy the property but WITHOUT JUS organization, or institution to which such priest or minister may
DISPONENDI. belong;
(3) A guardian with respect to testamentary dispositions given by a
If there is no absolute obligation to
ward in his favor before the final accounts of the guardianship
preserve and transmit, there is no have been approved, even if the testator should die after the
fideicommissary substitution. approval thereof; nevertheless, any provision made by the ward in
The institution is not necessarily void, it favor of the guardian when the latter is his ascendant,
may be valid as some other disposition descendant, brother, sister, or spouse, shall be valid;
but it is not a fideicomisaria. (4) Any attesting witness to the execution of a will, the spouse,
In PCIB v. Escolin, the institution was held parents, or children, or any one claiming under such witness,
spouse, parents, or children;
to be a simultaneous institution, a
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(5) Any physician, surgeon, nurse, health officer or druggist who took NOTE – this 2-fold requirement is to be met only upon
care of the testator during his last illness; the testator’s death, and this applies not only to the
(6) Individuals, associations and corporations not permitted by law to fiduciary but to the second heir as well.
inherit.
Art. 1028. The prohibitions mentioned in article 739, concerning donations
inter vivos shall apply to testamentary provisions.
Art. 1029. Should the testator dispose of the whole or part of his property Thus, the 2nd heir need not survive the first heir, if the
for prayers and pious works for the benefit of his soul, in general 2nd heir dies before the first heir, the 2nd heir’s own
terms and without specifying its application, the executor, with the
court's approval shall deliver one-half thereof or its proceeds to the
heirs merely take his place.
church or denomination to which the testator may belong, to be used
for such prayers and pious works, and the other half to the State, for
the purposes mentioned in Article 1013. ART. 864. A fideicommissary substitution can
Art. 1030. Testamentary provisions in favor of the poor in general, without never burden the legitime.
designation of particular persons or of any community, shall be
deemed limited to the poor living in the domicile of the testator at the
Legitime passes by strict operation of law, therefore the
time of his death, unless it should clearly appear that his intention
was otherwise. testator has no power over it.
The designation of the persons who are to be considered as poor
and the distribution of the property shall be made by the person
appointed by the testator for the purpose; in default of such person, ART. 865. Every fideicommisary substitution
by the executor, and should there be no executor, by the justice of
the peace, the mayor, and the municipal treasurer, who shall decide must be expressly made in order that it may
by a majority of votes all questions that may arise. In all these cases, be valid.
the approval of the Court of First Instance shall be necessary. The fiduciary shall be obliged to deliver
The preceding paragraph shall apply when the testator has the inheritance to the second heir, without
disposed of his property in favor of the poor of a definite locality.
other deductions than those which arise from
Art. 1031. A testamentary provision in favor of a disqualified person, even
though made under the guise of an onerous contract, or made
legitimate expenses, credits and
through an intermediary, shall be void. improvements, save in the case where the
Art. 1032. The following are incapable of succeeding by reason of testator has provided otherwise.
unworthiness:
(1) Parents who have abandoned their children or induced their FIDEICOMISARIA SHOULD BE EXPRESSLY
daughters to lead a corrupt or immoral life, or attempted against IMPOSED.
their virtue; 2 ways of making an express imposition –
(2) Any person who has been convicted of an attempt against the life
1. By the use of the term fideicommissary or
of the testator, his or her spouse, descendants, or ascendants;
(3) Any person who has accused the testator of a crime for which the 2. By imposing upon the first heir the absolute
law prescribes imprisonment for six years or more, if the obligation to preserve and to transmit to the
accusation has been found groundless; second heir.
(4) Any heir of full age who, having knowledge of the violent death of
the testator, should fail to report it to an officer of the law within a Allowable Deductions
month, unless the authorities have already taken action; this 1. GR – fiduciary should deliver property INTACT
prohibition shall not apply to cases wherein, according to law, and UNDIMINISHED to the fideicommissary heir
there is no obligation to make an accusation;
upon the arrival of the period.
(5) Any person convicted of adultery or concubinage with the spouse
of the testator; 2. The only Deductions allowed, in the absence of a
(6) Any person who by fraud, violence, intimidation, or undue contrary provision in the will are –
influence should cause the testator to make a will or to change a) Legitimate expenses – only necessary and
one already made; useful expenses and NOT ornamental
(7) Any person who by the same means prevents another from expenses
making a will, or from revoking one already made, or who b) Credits
supplants, conceals, or alters the latter's will; c) Improvements - only necessary and useful
(8) Any person who falsifies or forges a supposed will of the
improvements and NOT ornamental
decedent.
improvements
Art. 1033. The cause of unworthiness shall be without effect if the testator
had knowledge thereof at the time he made the will, or if, having
Damage or Deterioration to Property
known of them subsequently, he should condone them in writing.
If caused by a fortuitous event or ordinary wear and
Art. 1034. In order to judge the capacity of the heir, devisee or legatee, his tear – fiduciary is not liable
qualification at the time of the death of the decedent shall be the
criterion.
If caused by fiduciary’s fault or negligence –
In cases falling under Nos. 2, 3, or 5 of Article 1032, it shall be fiduciary is liable.
necessary to wait until final judgment is rendered, and in the case
falling under No. 4, the expiration of the month allowed for the report.
If the institution, devise or legacy should be conditional, the time ART. 866. The second heir shall acquire a right to
of the compliance with the condition shall also be considered.
the succession from the time of the testator’s
death, even though he should die before the
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fiduciary. The right of the second heir shall There can only be 2 beneficiaries of the
pass to his heirs. pension, one after the other, and the
second must be one degree from the first.
In connection with Art863 on element of But there is no prohibition on
fideicommissary that both heirs must be living and simultaneous beneficiaries.
disqualified to succeed at the time of the testator’s
death. 4. Leave to a person the whole part of the hereditary
The second heir’s right vests upon the testator’s death, property in order that he may apply or invest the
conformably with Art777 and Art878 since as far as the same according to secret instructions
second heir is concerned, the institution of him is one communicated to him by the testator.
subject to a suspensive term. The ostensible heir here is in reality only a
Thus, the second heir does not have to survive the first dummy, because in reality, the person
heir in order for the substitution to be effective. The intended to be benefited is the one to
second heir’s own heirs simply take his place by whom the secret instructions refer. The
succeeding to the vested right already possessed by purpose of such a surreptitious disposition
the second heir. is to circumvent some prohibition or
disqualification
This paragraph makes the ENTIRE
PROVISION VOID. The problem is the
ART. 867. The following shall not take effect:
difficulty of establishing the fact of
(1) Fideicommissary substitutions which circumvention. Supposing the ostensible
are not made in an express manner, heir conceals or destroys the secret
either by giving them this name, or instructions and claims as heir under the
imposing upon the fiduciary the testamentary provision as worded?
absolute obligation to deliver the
property to a second heir;
(2) Provisions which contain a perpetual ART. 868. The nullity of the fideicommissary
prohibition to alienate, and even a substitution does not prejudice the validity of
temporary one, beyond the limit fixed the institution of the heirs first designated;
in article 863. the fideicommissary clause shall simply be
(3) Those which impose upon the heir the considered as not written.
charge of paying to various persons
successively, beyond the limit If the fideicommissary substitution is void or ineffective,
prescribed in article 863, a certain the institution of the first heir simply becomes pure and
income or pension; unqualified.
(4) Those which leave to a person the Nullity or ineffectivity of the institution of the first heir –
article does not provide for a case where it is the
whole part of the hereditary property
institution of the first heir that is void or ineffective. What
in order that he may apply or invest is the rule in such a case?
the same according to secret
instructions communicated to him by
the testator. ART. 869. A provision whereby the testator leaves
to a person the whole or part of the
Provisions that shall NOT TAKE EFFECT
inheritance, and to another the usufruct, shall
1. Fideicommissary substitutions which are not made
in an express manner be valid. If he fives the usufruct to various
Lack of this element does not, by that fact persons, not simultaneously, but
alone, nullify the institution. It only means successively, the provisions of Article 863
that the institution is not a fideicomisaria. shall apply.
2. Perpetual prohibition to alienate, and even a If the testator institutes successive usufructuaries, there
temporary one, beyond the limit fixed in article can only be two usufructuaries, one after the other, and
863. as to the two of them, all the requisites of Art863 must
If there is a fideicomisaria, the limit is the be present.
first heir’s lifetime.
If there is no fideicomisaria, the limit is 20
years. ART. 870. The dispositions of the testator
declaring all or part of the estate inalienable
3. Imposes upon the heir the charge of paying a for more than twenty years are void.
certain income or pension to various persons
successively, beyond the limit prescribed in article
If the testator imposes a longer period than 20 years,
863
the prohibition is valid only for 20 years.
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- An alien may be bestowed usufructuary rights over a parcel further, that the fiduciary or first heir and the second heir are
of land in the Philippines. living at the time of the death of the testator."
- Fr. Teodoro Aranas, a priest of the Roman Catholic Church, - Linnie Jane Hodges died in Iloilo leaving a will wherein she
died on January 19, 1953. He had executed on June 6, 1946 bequeathed all of her propertied to her husband, Charles
his Last Will and Testament which was admitted to probate Newton Hodges.
on August 31, 1956. - The will contained a disposition saying “at the death of my
- In said Last Will and Testament, Fr. Teodoro Aranas said husband, I give, devise and bequeath all of the rest,
directed that certain properties acquired by him during his residue and remainder of my estate, both real and personal,
lifetime be given to his brothers Aniceto and Carmelo. wherever situation to be equally dived among my brothers
- He likewise appointed as special administration of the and sisters, share and share alike.
remainder of the estate Vicente Aranas, a faithful and - Charles was appointed executor, when he died Joe Hodges
serviceable nephew, and designated him also as recipient of and Fernando Mirasol replaced him, which in turn was
1/2 of the produce of the properties (those parcels of land to replaced by PCIB pursuant to an agreement of all the heirs
be given to Fr. Aranas’ brothers) after deducting the of Hodges.
expenses for the administration and the other 1/2 of the - The Higdons, composed of brothers and sisters of Linnie
produce to be given to the Catholic Church for the eternal now claims their share to her estate.
repose of the testator's soul. - PCIB, however, contends that there was no substitution in
- Vicente’s right to enjoy the fruits of the property was to end this case and that the testamentary disposition in favor of
upon his death or his refusal to act as administrator. the brothers and sisters are inoperative and invalid.
- Herein Petitioners challenged the validity of the disposition,
relying on Art. 870, which provides: “The dispositions of the Whether there is substitution.
testator declaring all or part of the estate inalienable for - None. There is no vulgar substitution because there is not
more than twenty years are void.” provision in the will for either: 1. predecease of the testator
by the designated heir, 2. refusal or 3. incapacity of the latter
Is the disposition in favor of Vicente valid? to accept the inheritance as required by art. 859.
- YES. Vicente Aranas as a usufructuary has the right to enjoy - There is neither a fideicommissary substitution because no
the property of his uncle with all the benefits which result obligation is imposed thereby upon Charles to preserve the
from the normal enjoyment (or exploitation) of another's estate or any part thereof for anyone else.
property, with the obligation to return, at the designated
time, either the same thing, or in special cases its Whether the disposition in favor of the brothers and sisters is
equivalent. inoperative
- This right of Vicente to enjoy the fruits of the properties is - No. The brothers and sisters of Mrs. Hodges are not
temporary and therefore not perpetual as there is a limitation substitutes for Charles because, under her will, they are not
namely his death or his refusal. Likewise his designation as to inherit what Hodges cannot, would no or may not inherit,
administrator of these properties is limited by his refusal but would inherit what he would not dispose of from his
and/or death and therefore it does not run counter to Art. inheritance.
870 of the Civil Code. - Therefore, they are also heirs instituted simultaneously with
- Be it noted that Vicente Aranas is not prohibited to dispose Charles, subject to certain conditions, partially resolutory
of the fruits and other benefits arising from the usufruct. insofar as Hodges was concerned and correspondingly
Neither are the naked owners (the other heirs) of the suspensive with reference to his brothers and sisters-in-law.
properties, the usufruct of which has been given to Vicente - Hence, while Charles could completely and absolutely
prohibited from disposing of said naked ownership without dispose of her estate during his lifetime, all his rights to what
prejudice of course to Vicente's continuing usufruct. may remain upon his death would then go his brothers and
- To void the designation of Vicente as usufructuary and/or sisters-in-law.
administrator is to defeat the desire and the dying wish of - If no obligation is imposed upon the first heir to preserve the
the testator to reward him for his faithful and unselfish property and to transmit it to the second heir, then there is
services rendered during the time when said testator was no fideicomisaria.
seriously ill or bed-ridden.
- The proviso must be respected and be given effect until the
death or until the refusal to act as such of the instituted
usufructuary/administrator, after which period, the property
can be properly disposed of, subject to the limitations
provided in Art. 863 of the Civil Code concerning a
fideicommissary substitution.
- Article 863: "A fideicommissary substitution by virtue of
which the fiduciary or first heir instituted is entrusted with the
obligation to preserve and to transmit to a second heir the
whole or part of the inheritance, shall be valid and shall take
effect, provided such substitution does not go beyond one
degree from the heir originally instituted, and provided
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GENERAL PROVISIONS
SECTION 4 – CONDITIONAL TESTAMENTARY Art871 – The right of the testator to impose conditions,
DISPOSITIONS AND TESTAMENTARY terms or modes springs from testamentary freedom. If
DISPOSITIONS WITH A TERM he has the right to dispose of his estate mortis causa,
then he has the right to make the disposition subject to
GENERAL PROVISIONS a condition, term or mode.
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The imposition of a condition does not displace 2. It deprives the heir of testamentary freedom
liberality as the basis of the grant. 3. It gives the testator the power to dispose
On the other hand, in obligations which are mortis causa not only of his property but also
onerous, the condition that is imposed becomes an of his heir’s.
integral part of the causa of the obligation. The
elimination of that condition for being impossible or What is declared void – it is not merely the condition
illegal results in a failure of cause. that is declared void but the testamentary disposition
itself which contains the condition.
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a) GR – must be fulfilled as soon as the heir The same shall be done if the heir does
learns of the testator’s death not give the security required in the
b) E – if the condition was already complied preceding article.
with at the time the heir learns of the
testator’s death, and the condition is of
such a nature that it cannot be fulfilled
again.
c) Constructive compliance – Art883 par2 –
condition is deemed fulfilled. ART. 881. The appointment of the administrator
of the estate mentioned in the preceding
Negative – not to do something article, as well as the manner of
a) Heir must give security to guarantee administration and the rights and obligations
[caucion muciana] the return of the value of the administrator shall be governed by the
of the property, fruits, and interests, in Rules of Court.
case of contravention.
b) 3 Instances when a Caucion Muciana is
Between the time of the testator’s death and the time of
Required
the fulfillment of the suspensive condition or of the
Art879 – if the potestative
certainty of its non-occurrence – property is to be
conditions is negative
placed under administration.
Art885 par2 - The designation of
1. If condition happens – the property will be
the day or the time when the
turned over to the instituted heir
effects of the institution of an heir
2. If it becomes certain that condition will not
shall commence
happen – property will be turned over to a
Art882 – When there is a
secondary heir [if there is one] or to the
statement of the object of the
intestate heirs, as the case may be.
institution, or the application of the
property left by the testator, or the
Not applicable to institutions with a TERM – despite the
charge imposed by him.
wording of the article, it should not be applied to
B. CASUAL or MIXED institutions with a term, which are governed by Art885
par 2. Otherwise, there will be an irreconcilable conflict
GR – may be fulfilled at any time, before or
with that article, which mandates that before the arrival
after the testator’s death, unless the testator
of the term, the property should be given to the legal
provides otherwise.
heirs.
QUALIFICATIONS – if already fulfilled at the
time of the execution of the will
2nd paragraph – the property shall be in the executor’s
a) If testator UNAWARE of fulfillment –
or administrator’s custody until the heir furnishes the
deemed fulfilled
caucion muciana.
b) If testator was AWARE of fulfillment
Can no longer be fulfilled again –
Procedural rules governing appointment of
deemed fulfilled
administrator – Rules 77-90 RoC.
Can be fulfilled again – must be
fulfilled again
Constructive Compliance - Art883 par2
a) If casual – not applicable ART. 884. Conditions imposed by the testator
b) If mixed upon the heirs shall be governed by the rules
If dependent partly on chance – established for conditional obligations in all
not applicable matters not provided for by this Section.
If dependent partly on will of a
third party Suppletorily governing conditional institutions are
If interested 3rd party – Articles 1179 and 1192 on conditional obligations.
applicable
If not an interested party – not Art. 1179. Every obligation whose performance does not depend upon a
applicable future or uncertain event, or upon a past event unknown to the parties,
is demandable at once.
Every obligation which contains a resolutory condition shall also be
demandable, without prejudice to the effects of the happening of the
ART. 880. If the heir be instituted under a event.
suspensive condition or term the estate shall Art. 1180. When the debtor binds himself to pay when his means permit
be placed under administration until the him to do so, the obligation shall be deemed to be one with a period,
condition is fulfilled, or until it becomes subject to the provisions of Article 1197.
certain that it cannot be fulfilled, or until the Art. 1181. In conditional obligations, the acquisition of rights, as well as the
arrival of the term. extinguishment or loss of those already acquired, shall depend upon the
happening of the event which constitutes the condition.
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Art. 1182. When the fulfillment of the condition depends upon the sole will The injured party may choose between the fulfillment and the
of the debtor, the conditional obligation shall be void. If it depends upon rescission of the obligation, with the payment of damages in either case.
chance or upon the will of a third person, the obligation shall take effect He may also seek rescission, even after he has chosen fulfillment, if the
in conformity with the provisions of this Code. latter should become impossible.
Art. 1183. Impossible conditions, those contrary to good customs or public The court shall decree the rescission claimed, unless there be just
policy and those prohibited by law shall annul the obligation which cause authorizing the fixing of a period.
depends upon them. If the obligation is divisible, that part thereof which This is understood to be without prejudice to the rights of third
is not affected by the impossible or unlawful condition shall be valid. persons who have acquired the thing, in accordance with Articles 1385
The condition not to do an impossible thing shall be considered as and 1388 and the Mortgage Law.
not having been agreed upon. Art. 1192. In case both parties have committed a breach of the obligation,
Art. 1184. The condition that some event happen at a determinate time the liability of the first infractor shall be equitably tempered by the courts.
shall extinguish the obligation as soon as the time expires or if it has If it cannot be determined which of the parties first violated the contract,
become indubitable that the event will not take place. the same shall be deemed extinguished, and each shall bear his own
damages.
Art. 1185. The condition that some event will not happen at a determinate
time shall render the obligation effective from the moment the time
indicated has elapsed, or if it has become evident that the event cannot
occur. DISPOSITION WITH TERMS
If no time has been fixed, the condition shall be deemed fulfilled at
such time as may have probably been contemplated, bearing in mind
the nature of the obligation.
ART. 878. A disposition with a suspensive term
does not prevent the instituted heir from
Art. 1186. The condition shall be deemed fulfilled when the obligor
voluntarily prevents its fulfillment. acquiring his rights and transmitting them to
Art. 1187. The effects of a conditional obligation to give, once the condition
his heirs even before the arrival of the term.
has been fulfilled, shall retroact to the day of the constitution of the
obligation. Nevertheless, when the obligation imposes reciprocal When the heir’s right vests – in dispositions with a term,
prestations upon the parties, the fruits and interests during the pendency the heir’s right vests upon the testator’s death,
of the condition shall be deemed to have been mutually compensated. If conformably with Art777. Therefore, should the heir die
the obligation is unilateral, the debtor shall appropriate the fruits and before the arrival of the suspensive term, he merely
interests received, unless from the nature and circumstances of the transmits his right to his own heirs who can demand the
obligation it should be inferred that the intention of the person
constituting the same was different.
property when the term arrives.
In obligations to do and not to do, the courts shall determine, in each The rule in this article is similar to Art866 in
case, the retroactive effect of the condition that has been complied with. fideicommissary substitutions.
The rule in conditional institutions – what is the rule if
Art. 1188. The creditor may, before the fulfillment of the condition, bring the
appropriate actions for the preservation of his right. the instituted heir dies before the happening of the
The debtor may recover what during the same time he has paid by condition? The section is silent on this matter. But
mistake in case of a suspensive condition. under Art1034, par3, “if the institution, devise or legacy
Art. 1189. When the conditions have been imposed with the intention of should be conditional, the time of the compliance with
suspending the efficacy of an obligation to give, the following rules shall the condition shall also be considered.
be observed in case of the improvement, loss or deterioration of the The import is that in conditional institutions, the heir
thing during the pendency of the condition: should be Living and Qualified to succeed BOTH at
(1) If the thing is lost without the fault of the debtor, the obligation the time of the testator’s death and at the time of
shall be extinguished; the happening of the condition.
(2) If the thing is lost through the fault of the debtor, he shall be
obliged to pay damages; it is understood that the thing is lost
when it perishes, or goes out of commerce, or disappears in such
a way that its existence is unknown or it cannot be recovered; ART. 885. The designation of the day or the time
(3) When the thing deteriorates without the fault of the debtor, the when the effects of the institution of an heir
impairment is to be borne by the creditor;
(4) If it deteriorates through the fault of the debtor, the creditor may
shall commence or cease shall be valid.
choose between the rescission of the obligation and its fulfillment, In both cases, the legal heir shall be
with indemnity for damages in either case; considered as called to the succession until
(5) If the thing is improved by its nature, or by time, the improvement the arrival of the period or its expiration. But
shall inure to the benefit of the creditor;
(6) If it is improved at the expense of the debtor, he shall have no
in the first case he shall not enter into
other right than that granted to the usufructuary. (1122) possession of the property until after having
Art. 1190. When the conditions have for their purpose the extinguishment of given sufficient security, with the intervention
an obligation to give, the parties, upon the fulfillment of said conditions, of the instituted heir.
shall return to each other what they have received.
In case of the loss, deterioration or improvement of the thing, the If term is Suspensive – before the arrival of the term,
provisions which, with respect to the debtor, are laid down in the
the property should be delivered to the intestate heirs. A
preceding article shall be applied to the party who is bound to return.
As for the obligations to do and not to do, the provisions of the caucion muciana has to be posted by them. This is the
second paragraph of Article 1187 shall be observed as regards the 2nd instance where a caucion muciana is required to be
effect of the extinguishment of the obligation. posted.
Art. 1191. The power to rescind obligations is implied in reciprocal ones, in If term is Resolutory – before the arrival of the term, the
case one of the obligors should not comply with what is incumbent upon property should be delivered to the instituted heir. No
him. caucion muciana is required.
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ART. 883 par1. When without the fault of the heir, - The subject of this case is the partition of the estate of the
late Joseph Brimo.
an institution referred to in the preceding - Miciano, the appointed judicial administrator, filed a partition
article cannot take effect in the exact manner scheme.
stated by the testator, it shall be complied - Andre Brimo, one of Joseph’s borthers, opposed stating that
with in a manner most analogous to and in the partition was not in accordance with Turkish laws,
conformity with his wishes. Jospeh being a Turkish citizen.
- Andre contends that this was void because the Civil Code
The intention of the testator should always be the states that legal and testamentary successions shall be
guiding norm in determining the sufficiency of the governed by the national law of the person whose
analogous performance. succession is in question.
- Andre was excluded from as a legatee because of a clause
in the will where Joseph wished that his property be
distributed in accordance with Philippine laws, and any
SECTION 5 – LEGITIME legatee who fails to comply with this would be prevented
from receiving his legacy.
- Since the institution of legatees was conditioned upon
System of Legitimes – our successional system, closely Joseph’s wish, it is claimed that Andre is excluded by
patterned after that of the Spanish Code, reserves a questioning the validity of applying Philippine laws in the
portion of the net estate of the decedent in favor of partition of the estate (which was against his brother’s wish).
certain heirs, or groups of heirs or combination of heirs.
The portion that is so reserved is called the LEGITIME. WON Andre Brimo can be validly excluded as a legatee.
The portion that is left available for testamentary - NO. The condition imposed by the will of the testator is
disposition after the legitimes have been covered is the contrary to law because it ignores the testator’s national
free or disposable portion. law, when according to the Civil Code, such national law of
The heirs for whom the law reserves a portion are the testator is to govern his testamentary dispositions.
called compulsory heirs. - As such, the condition is considered unwritten and the
institution of legatees in the will is unconditional and
consequently valid and effective even as to Andre.
Nature of Legitimes – the legitimes are set aside by
- The remaining clauses of the will are valid despite the nullity
mandate of law. Thus, the testator is required to set
of the clause stating that the testator’s testamentary
aside or reserve them. Otherwise stated, the testator is dispositions be governed by Philippine laws.
prohibited from disposing by gratuitous title, either inter - Art. 792, (Old) Civil Code: Impossible conditions and those
vivos or mortis causa, of these legitimes. Dispositions contrary to law or good morals shall be considered as not
by onerous title are not prohibited because in theory, imposed and shall not prejudice the heir or legatee in any
nothing is lost from the estate in an onerous disposition, manner whatsoever, even should the testator otherwise
since there is merely an exchange of values. provide.
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ILLEGITIMATE PARENTS
1. Unlike the legitimate ascending line, which
includes ascendants in whatever degree, the
illegitimate ascending line only includes the
parents, it does not go beyond the parents.
2. The illegitimate parents are secondary heirs of
a lower category that legitimate parents,
because the illegitimate parents are excluded
by legitimate and illegitimate children [Art903]
whereas legitimate parents are excluded only
by legitimate children/ descendants.
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LCSS Legitimate ½ of estate to Art. 892. If only one legitimate child or LEGAL SEPARATION between the testator
Children and legitimate children descendant of the deceased survives, the and the surviving spouse
Surviving Share equal to that of widow or widower shall be entitled to one- If there is a final decree of legal separation
Spouse 1 child for the fourth of the hereditary estate. In case of a 1. surviving spouse is the innocent party
surviving spouse legal separation, the surviving spouse may – he/she gets her legitime [Art63 par4
[taken from the free inherit if it was the deceased who had given FC]
disposable portion of cause for the same. 2. surviving spouse is the offending
If there are two or more legitimate children spouse – he/she is disqualified from
the estate]
or descendants, the surviving spouse shall inheriting [Art63 par4 FC]
[Art892par2]
be entitled to a portion equal to the legitime If after the final decree of legal separation
of each of the legitimate children or there was a reconciliation between the
descendants. parties, the reciprocal right to succeed is
In both cases, the legitime of the surviving restored because reconciliation sets aside the
spouse shall be taken from the portion that decree [Art66 par2 FC]
can be freely disposed of by the testator.
LCIC Legitimate ½ of estate to the Illegitimate child only gets half the share of a
Children and legitimate children legitimate child. In case total of the shares of
Illegitimate ½ of the share of 1 all illegitimate children exceed the amount of
Children legitimate child to the the estate, their shares shall be reduced
illegitimate children equally. The shares of the legitimate children
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LCICSS Legitimate ½ of estate to Art. 895. The legitime of each of the In case total of the shares of all illegitimate
children, legitimate children acknowledged natural children and each of children exceed the amount of the estate,
illegitimate Each illegitimate the natural children by legal fiction shall their shares shall be reduced equally. The
children and child will get ½ of the consist of one-half of the legitime of each of shares of the legitimate children and the
surviving share of one the legitimate children or descendants. surviving spouse cannot be reduced.
spouse legitimate child The legitime of an illegitimate child who is
A share equal to that neither an acknowledged natural, nor a
natural child by legal fiction, shall be equal in
of 1 legitimate child
every case to four-fifths of the legitime of an
for the surviving
acknowledged natural child.
spouse, whose share The legitime of the illegitimate children shall
is preferred over be taken from the portion of the estate at the
those of the free disposal of the testator, provided that in
illegitimate children no case shall the total legitime of such
which shall be illegitimate children exceed that free portion,
reduced if necessary. and that the legitime of the surviving spouse
[Art895] must first be fully satisfied.
LP Legitimate ½ of estate [Art889] Art. 889. The legitime of legitimate parents or There is NO RIGHT OF REPRESENTATION
parents alone ascendants consists of one-half of the in the Ascending Line.
hereditary estates of their children and If the one of the legitimate parents
descendants. PREDECEASE or is INCAPACITATED to
The children or descendants may freely inherit, his/her share accrues to the other
dispose of the other half, subject to the rights parent [tama ba?]
of illegitimate children and of the surviving
spouse as hereinafter provided.
LPIC Legitimate ½ of estate to Art. 896. Illegitimate children who may survive For the illegitimate children or descendants,
parents and legitimate parents with legitimate parents or ascendants of the the sharing shall depend on whether death
illegitimate ¼ of estate to deceased shall be entitled to one-fourth of the occurred before or during the effectivity of the
children illegitimate children hereditary estate to be taken from the portion Family Code.
at the free disposal of the testator.
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- The tricycle being driven by Bienvenido Nacario met an W/N the decision of the TC is final as to the widow.
accident with a bus, driven by Edgar Bitancor and owned - SC held that the decision is final because:
and operated by Jose Baritua. - 1. The widow is considered a third person as regards the
- The accident caused the death of Nacario. estate of the parent-in-law.
- No civil or criminal case was filed against the driver and - 2. The provision in Art. 887 refers to the estate of the
Baritua. Instead, an extra-judicial settlement was entered deceased spouse in which case the surviving spouse is a
into between Nacario’s spouse Alicia Baracena and the compulsory heir. It does not apply to the estate of the
petitioners and the bus’ insurer (Philippine First Insurance parent-in-law
Company). - 3. Petitioner cannot assert the same rights as that of the
- In that settlement, the spouse was given P18,500 and in grandchild because she has no filiation by blood with her
consideration for what she received, the widow executed mother-in-law.
an affidavit of desistance in filing any case against the - 4. The right of the widow’s husband was extinguished at the
petitioners. time of his death; thus, grandchild succeeded from
- A year after, the parents of Nacario filed a complaint for decedent by right of representation and not from his
damages against the petitioners alleging that the petitioners deceased father.
promised to indemnify for the death of their son, the funeral - Art. 887 of the Civil Code: Intestate or legal heirs are
expenses and the damages caused to the tricycle but classified into two groups namely those who inherit by their
instead the petitioners paid to the estranged wife. right and those who inherit by the right of representation.
- The CFI ruled in favor of Baritua and the driver but the CA (Art. 981)
reversed the decision upon appeal. Hence, this petition.
Lapuz v. Eufemio
Whether or Not CA erred in ruling that the petitioners are still
liable to pay to the Nacarios’ parents Note – under the Lapuz ruling, it does not matter who dies,
- SC held that this ruling is erroneous. whether it be the offending or innocent spouse.
- The Court recognized that payment is one of the
recognized modes in extinguishing obligations. De Aparicio v. Paraguya
- According to Art 1240 of the CC, to effect extinguishment,
payment must be made either to the person to whom the - Trinidad Motilde had a love affair with a priest, Fr. Felipe
obligation is made, to his successors-in-interest, or to Lumain and in the process she conceived.
anyone authorized. - When Trinidad was almost four months and in order to
- It is clear under Article 887 that a surviving spouse and the conceal the affair, Trinidad decided to marry Anastacio
legitimate children are the compulsory heirs of a decedent. MAmburao.
- As such, the petitioners correctly paid Alicia and her son, - When Fr. Lumain died, he left a last will and testament
who are the successors-in-interest of Nacario. wherein he acknowledged Consolacion as his daughter and
- On the other hand, the parents of the deceased succeed instituted her as the sole and universal heir of all his
only when the latter dies without any legitimate property rights and interests.
descendants. Since Nacario and Alicia begot a son, the - Soon after reaching the age of majority, Consolacion filed
legitimate ascendants are excluded from succession. an action for the recovery of certain parcels of land and for
- This is so even if Alicia had been estranged from damages against Hipolito Paraguya.
Bienvenido. Mere estrangement is not a legal ground for - Motilde claims that she has inherited these lands from her
the disqualification of a surviving spouse as an heir of the biological father.
deceased spouse. - During the trial, it was found that the subject of the action
- Legitimate ascendants succeed only in default of legitimate were the three parcels of land originally owned by the
descendants whereas a spouse is a concurring heir and Parents of Fr. Lumain, the spouses Roman Lumain and
succeeds together with all classes of heirs. and Filomena Cesare.
- Mere estrangement is not a legal ground for the - Paraguya claims ownership over the second parcel of land
disqualification of a surviving spouse as an heir of the by virtue of a Pacto de retro sale executed by Roman
deceased spouse. Lumain and the former.
- Paraguya also claimed another portion of the lands in
question, described as portion G, which he said he bought
Rosales v. Rosales from Pelagio Torrefranca.
- Above all this, Paraguya also contended that Motilde had
Rosales v. Rosales no right over the properties of Fr. Lumain.
- Mrs. Petra Rosales died intestate. She was survived by her - He averred that by virtue of Art 255 of the Family Code,
husband and her two children. Her son predeceased her children born after 180days of the marriage are presumed
but left a grandchild and his widow, who is the petitioner to a legitimate child.
herein. - Paraguya further averred that the exceptions to the rule
- The trial court awarded ¼ each to the deceased husband, were not duly proved by Consolacion.
two daughters and grandchild. - Finally, he contended that the acknowledgement by Fr.
- Petitioner daughter-in-law now seeks reconsideration. Lumain that Consolacion was his child cannot prevail over
the said presumption of legitimacy.
W/N a widow is an intestate heir of a mother-in-law.
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Whether or Not Paraguya is entitled to the lot subject to a The only qualification to the rule that the nearer exclude
right of repurchase the more remote in the descending line is
- SC held that Paraguya is entitled to the 2nd parcel of land representation when proper [Arts970-977]
subject of the Pacto de retro sale. It is evident that the
period to redeem the property, which is four years from the There is no limit to the number of degrees in the
date of the contract, has already expired. descending line that may be called to succeed, whether
- Paraguya is also entitled to the land described as section G in their own right or by representation.
with all the improvements thereon.
- The evidence adduced shows that this Section is outside
the land of Roman Lumain.
ART. 889. The legitime of legitimate parents or
Whether or Not Paraguya is entitled to the land described as ascendants consists of one-half of the
Section G hereditary estates of their children and
- SC held in the affirmative. descendants.
- Paraguya questions the right of Consolacion over the
properties of Fr. Lumain on the premise that she is the The children or descendants may freely
legitimate spouses of the mamburaos. dispose of the other half, subject to the rights
of illegitimate children and of the surviving
Whether or Not Consolacion is entitled to inherit from Fr.
spouse as hereinafter provided.
Lumain
- The SC held that it is unnecessary to establish the paternity
of Consolacion in this case.
- This is because, in the Last Will and Testament of Fr. ART. 890. The legitime reserved for the legitimate
Lumain, he did not only acknowledge Consolacion as his parents shall be divided between them
daughter but also instituted her as his sole heir. equally; if one of the parents should have
- As Fr. Lumain died without no compulsory heir, died, the whole shall pass to the survivor.
Concolacion as the sole heir is entitled to all the properties
of the former. If the testator leaves neither father nor
- One who has no compulsory heir may dispose by will of all mother, but is survived by ascendants of
of his estate or any part of it in favor of any person having
equal degree of the paternal and maternal
the capacity to succeed.
- One who has no compulsory heir may dispose by will of all lines, the legitime shall be divided equally
of his estate or any part of it in favor of any person having between both lines. If the ascendants should
the capacity to succeed. be of different degrees, it shall pertain entirely
to the ones nearest in degree of either line.
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The operation of the principles of Division By Line and absent for the specified period and lay down the
Equal Division within the Line may cause inequality of requisites therefor.
shares among ascendants of identical degrees. The reappearance of the prior spouse
For example, if both legitimate parents of testator TERMINATES the second marriage. One of the
predecease him and testator has no other effects of the termination as given in Art43[5] is –
legitimate descendants, if there are 2 surviving “The spouse who contracted the subsequent
maternal grandparents but only 1 surviving paternal marriage in BAD FAITH shall be disqualified to
grandparent – the ½ estate is divided equally inherit from the innocent spouse by testate and
between the maternal and paternal lines, but the 2 intestate succession.
maternal grandparents must share the ¼ portion of The implication of Art43 is that –
the maternal line [they get 1/8 each] while the sole 1. If both consorts in the second marriage were in
paternal grandparent gets the whole ¼ portion of GOOD FAITH, they continue to be heirs of
the paternal line. each other.
2. If only one of said consorts acted in bad faith,
the innocent one will continue by testate and
intestate succession.
ART. 892. If only one legitimate child or
descendant of the deceased survives, the PROBLEM – A and B are married. A disappears
widow or widower shall be entitled to one- and is absent for the required period. B then
fourth of the hereditary estate. In case of a contracts a second marriage with C, both in good
legal separation, the surviving spouse may faith. Out of nowhere, A reappears [surprise!], and
inherit if it was the deceased who had given so the marriage between B and C is terminated.
Under Art43[5] the reciprocal right of succession
cause for the same.
between A and B as the original spouses remains.
If there are two or more legitimate What if B dies? Can A and C inherit from him/her?
children or descendants, the surviving
spouse shall be entitled to a portion equal to The same problem arises in cases of marriages
the legitime of each of the legitimate children judicially annulled or declared void ab initio,
because of the provisions of Art50 par1 of the
or descendants.
Family Code – “The effects provided for by
In both cases, the legitime of the paragraphs 2,3,4 and 5 of article 43 and by article
surviving spouse shall be taken from the 44 shall also apply in the proper cases to
portion that can be freely disposed of by the marriages which are void ab initio or annulled by
testator. final judgment under Articles 40 and 45.
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1. The legitimes of the legitimate children should fourth of the estate which shall be taken also
never be reduced, they are PRIMARY and from the disposable portion. The testator may
PREFERRED compulsory heirs freely dispose of the remaining one-eighth of
2. The legitime of the surviving spouse should the estate.
never be reduced, this article prohibits this.
3. The legitimes of the illegitimate children will be
reduced pro rata and without preference LEGITIMATE PARENTS / ILLEGITIMATE CHILDREN
among them. / SURVIVING SPOUSE – the sharing is ½ for the
legitimate parents collectively, ¼ for the illegitimate
children collectively and 1/8 for the surviving spouse.
ART. 896. Illegitimate children who may survive
with legitimate parents or ascendants of the For the parents or ascendants, the sharing will be
deceased shall be entitled to one-fourth of the in accordance with the rules laid down in Articles
889-890.
hereditary estate to be taken from the portion
For the illegitimate children or descendants, the
at the free disposal of the testator. sharing shall depend on whether death occurred
before or during the effectivity of the Family Code.
ILLEGITIMATE CHILDREN / LEGITIMATE PARENTS
the sharing is ½ for the legitimate parents collectively
and ¼ for the illegitimate children collectively. ART. 900. If the only survivor is the widow or
widower, she or he shall be entitled to one-
For the parents or ascendants, the sharing will be half of the hereditary estate of the deceased
in accordance with the rules laid down in Articles spouse, and the testator may freely dispose
889-890. of the other half.
For the illegitimate children or descendants, the
sharing shall depend on whether death occurred If the marriage between the surviving
before or during the effectivity of the Family Code. spouse and the testator was solemnized in
articulo mortis, and the testator died within
three months from the time of the marriage,
ART. 897. When the widow or widower survives the legitime of the surviving spouse as the
with legitimate children or descendants, and sole heir shall be one-third of the hereditary
acknowledged natural children, or natural estate, except when they have been living as
children by legal fiction, such surviving husband and wife for more than five years. In
spouse shall be entitled to a portion equal to the latter case, the legitime of the surviving
the legitime of each of the legitimate children spouse shall be that specified in the
which must be taken from that part of the preceding paragraph.
estate which the testator can freely dispose
of.
SURVIVING SPOUSE AS SOLE COMPULSORY HEIR
–
General rule – ½ of the estate
ART. 898. If the widow or widower survives with
Exception – 1/3 of the estate, if the following
legitimate children or descendants, and with circumstances are present –
illegitimate children other than acknowledged a) The marriage was in articulo mortis
natural, or natural children by legal fiction, b) The testator died within 3 months from the
the share of the surviving spouse shall be the time of the marriage
same as that provided in the preceding c) The parties did not cohabit for more than 5
article. years, and
d) The spouse who died was the party in
articulo mortis at the time of the marriage.
The 2 articles are merely reiterations of the rules
already laid down in Articles 892 and 895 and need not NOTE – the last requisite is not explicit in the article but
be explained. can be derived from the sense and intent of the
provision. The law does not regard such marriages with
eager approval.
ART. 899. When the widow or widower survives
with legitimate parents or ascendants and
with illegitimate children, such surviving
spouse shall be entitled to one-eighth of the
hereditary estate of the deceased which must
be taken from the free portion, and the
illegitimate children shall be entitled to one-
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2. Juridical Nature from the viewpoint of the The rule in this jurisdiction, therefore, is that
RESERVATARIOS upon the reservista’s death, the property passes
- The nature of the reservatarios’ right is, by strict operation of law [according to the rules
Manresa says, that “during the whole of intestate succession, as held in Padura], to
period between the constitution in legal the proper reservatarios. Thus, the selection of
form of the right required by law to be which reservatarios will get the property is made
reserved and the extinction thereof, the by law and not by the reservista.
relatives within the 3rd degree, after the
right that in their turn may pertain to them The Property Reserved
has been assured, have only an Any kind of property is reservable. A sugar quota
EXPECTATION and therefore they do not allotment, as incorporeal property, was held to be
even have the capacity to transmit that reservable in Rodriguez v. Rodriguez.
expectation to their heirs.”
- The relatives within the 3rd degree in whose Effect of Substitution
favor the right is reserved cannot dispose of o The very same property must go through the
the property, first because it is in no way, process of transmissions, in order for the
either actually, constructively or formally, in reserva to arise. Thus, the same property must
their possession; and, moreover, because come from the Mediate Source, to the
they have no title of ownership or of fee Prepositus by gratuitous title, and to the
simple which they can transmit to another, reservista by operation of law.
on the hypothesis that only when the o If the prepositus substitutes the property by
person who must reserve the right should selling, bartering or exchanging it, the substitute
die before them will they take their place in cannot be reserved.
the succession of the descendant of whom o Note that while the property is with the
they are relatives within the 3rd degree, that Prepositus, there is yet no reserva, which
is to say, a second contingent place in said commences when the property id received by
legitimate succession in the fashion of the reservista.
aspirants to a possible future legacy. o Consequently, the Prepositus has, over the
[Edroso v. Sablan] property, plenary powers of ownership, and he
- The reserva instituted by law instituted by may exercise these powers to thwart the
law in favor of the heirs within the 3rd potential reserva. The Prepositus is the arbiter
degree belonging to the line from which the of the reserva.
reservable property came, constitutes a
REAL RIGHT which the reserve may QUESTION – would there be a reserva if the
alienate and dispose of, albeit conditionally, Prepositus sold the property under pacto de retro
the CONDITION being that the alienation and then redeemed it?
shall transfer ownership to the vendee only
if an when the reserve survives the person Reserved Property Does Not Form Part of the
obliged to reserve. [Sienes v. Esparcia] Reservista’s Estate Upon his Death
o The contention that an intestacy proceeding is
From Sienes, the following may be derived: still necessary rests upon the assumption that
A. The reservatarios have a right of expectancy the reservatario will succeed in, or inherit, the
over the property. reservable property from the reservista. This is
B. The right is subject to a SUSPENSIVE not true. The reservatario is not the reservista’s
CONDITION, i.e. the expectancy ripens into successor mortis causa nor is the reservable
ownership if the reservatarios survive the property part of the reservista’s estate; the
reservista. reservatario receives the property as a
C. The right is alienable, but subject to the same conditional heir of the Prepositus, said property
suspensive condition. merely reverting to the line of origin from which
D. The right is registerable. it had temporarily and accidentally strayed
during the reservista’s lifetime.
Florentino v. Florentino also held that the reservista o It is a consequence of these principles that
has NO POWER to appoint, by will, which specific upon the death of the reservista, the
individual of the reservatarios were to get the reservatario nearest to the prepositus becomes,
reserved property. [As also held in Gonzales v. CFI]. automatically and by operation of law, the
owner of the reservable property. As already
The reservees do not inherit from the reservoir but stated, that property is no part of the estate of
from the PREPOSITUS, of whom the reservees are the reservista, and does not even answer for
the heirs mortis causa subject to the condition that the debts of the latter. Hence, its acquisition by
they must survive the reservor. [Padura v. Baldovino the reservatario may be entered in the property
as cited in Gonzales v. CFI] records without necessity of estate proceedings,
since the basic requisites therefor appear of
record. [Cano v. Director]
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- She then filed an ordinary civil action for the purpose of deceased and proceeded to set up the "SALUSTIA
securing a declaration that the said properties are SOLIVIO VDA. DE JAVELLANA FOUNDATION".
reservable properties which Mrs. Legarda could not - Four months later, Concordia filed a motion for
bequeath in her will. This was dismissed. reconsideration of the court's order declaring Celedonia as
- Hence this appeal. "sole heir" of Esteban, Jr., because she too was an heir of
the deceased.
WON, the properties in question are subject to reserve troncal
under Article 891 of the Civil Code. Whether the decedent's properties were subject to reserva
- Yes, the properties in the instant case were reservable troncal in favor of Celedonia, his relative within the third
properties in the hands of Mrs. Legarda. Undoubtedly she degree on his mother's side from whom he had inherited
was a reservoir. them;
- The reservation became a certainty when at the time of her - NO. Clearly, the property of the deceased, Esteban
death the reserves or relatives within the third degree of the Javellana, Jr., is not reservable property, for Esteban, Jr.
prepositus Filomena Legarda were living or they survived was not an ascendant, but the descendant of his mother,
Mrs. Legarda. Salustia Solivio, from whom he inherited the properties in
question.
WON, Mrs. Legarda as reservor can convey the reservable - Therefore, he did not hold his inheritance subject to a
properties by will or mortis causa to the reserves within the 3 rd reservation in favor of his aunt, Celedonia Solivio, who is
degree to the exclusion of the reserves in the 2 nd degree, her his relative within the third degree on his mother's side. The
daughters and sons. reserva troncal applies to properties inherited by an
- No, she cannot convey these as they never really formed ascendant from a descendant who inherited it from another
part of her estate. ascendant or a brother or sister. It does not apply to
- The reservor cannot make a disposition morits causa of the property inherited by a descendant from his ascendant, the
reservable properties as long as the reserves survived the reverse of the situation covered by Article 891.
reservoir. - Since the deceased, Esteban Javellana, Jr., died without
- The nearest relatives should be the one who will inherit the descendants, ascendants, illegitimate children, surviving
property and Mrs. Legarda could not choose to whom the spouse, brothers, sisters, nephews or nieces, what should
reservable property should be given and deprive the other apply in the distribution of his estate are Articles 1003 and
reservees of their share therein. 1009 of the Civil Code. (see Doctrine portion)
- Ignoring the second degree reservees would be a glaring - Both plaintiff-appellee and defendant-appellant being
violation of Article 891. relatives of the decedent within the third degree in the
- Hence, the reservable properties should go to Mrs. collateral line, each, therefore, shall succeed to the subject
Legarda’s children and not to the grandchildren. estate 'without distinction of line or preference among them
- In reserva troncal,l (1) a descendant inherited or acquired by reason of relationship by the whole blood,' and is entitled
by gratuitous title property from an ascendant or from a to one-half (1/2) share and share alike of the estate.
brother or sister; (2) the same property is inherited by - As regards Concordia’a ½ share--inasmuch as Concordia
another ascendant or is acquired by him by operation of law had agreed to deliver the estate of the deceased to the
from the said descendant, and (3) the said descendant foundation in honor of his mother, Salustia. she is bound by
should reserve the said property for the benefit of relative that agreement. It is true that by that agreement, she did
who are within the third degree from the deceased not waive her inheritance in favor of Celedonia, but she did
descendant and who belong to the line from which the said agree to place all of Esteban's estate in the "Salustia
property came. Three transmissions are involved. Solivio Vda. de Javellana Foundation" which Esteban, Jr.,
- Reserva contemplates legitimate relationship during his lifetime, planned to set up to honor his mother.
- The persons involved in reserva troncal are:
"1. The person obliged to reserve is the reservor
Solivio v. CA (reservista) — the ascendant who inherits by operation of
law property from his descendants.
- As Esteban’s parents died while he was still young, Salustia "2. The persons for whom the property is reserved are
and her sister, Celedonia brought up Esteban, Jr. Salustia, the reservees (reservatorios) — relatives within the third
Esteban’s mother, brought to her marriage paraphernal degree counted from the descendant (propositus), and
properties, but no conjugal property was acquired during belonging to the line from which the property came.
her short-lived marriage to Esteban, Sr. "3. The propositus — the descendant who received by
- Salustia died, leaving all her properties to her only child, gratuitous title and died without issue, making his other
Esteban, Jr., ascendant inherit by operation of law.
- Esteban died of a heart attack. His only surviving relatives - "ART. 1003. If there are no descendants, ascendants,
are: (1) his maternal aunt, petitioner Celedonia Solivio, the illegitimate children, or a surviving spouse, the collateral
spinster half-sister of his mother, Salustia Solivio; and (2) relatives shall succeed to the entire estate of the deceased
the private respondent, Concordia Javellana-Villanueva, in accordance with the following articles.
sister of his deceased father, Esteban Javellana, Sr. - "ART. 1009. Should there be neither brothers nor
- Celedonia told Concordia about Esteban's desire to place sisters, nor children of brothers or sisters, the other
his estate in a foundation to be named after his mother, collateral relatives shall succeed to the estate.
from whom his properties came, for the purpose of helping - "The latter shall succeed without distinction of lines or
indigent students in their schooling. Concordia agreed to preference among them by reason of relationship by the
carry out the plan of the deceased. whole blood."
- The probate court declared Celdonia as sole heir of the
estate of Esteban. Thereafter, she sold properties of the
estate to pay the taxes and other obligations of the
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- In reserva troncal, the successional rights of the relatives of degree belonging to the line from which said property
the praepositus within the 3rd degree are determined by, came.
and subject to the rules of intestate succession; so as to - The transmission is gratuitous or by gratuitous title when
exclude uncles and aunts of the descendant from the the recipient does not give anything in return It matters not
reservable property by his niece or nephew. whether the property transmitted be or be not subject to any
prior charges; what is essential is that the transmission be
made gratuitously, or by an act of mere liberality of the
Frias v. CFA person making it, without imposing any obligation on the
part of the recipient; and that the person receiving the
- In the first marriage of Jose Frias Chua with Patricia S. property gives or does nothing in return; the essential thing
Militar, he sired three children, namely: Ignacio, Lorenzo is that the person who transmits it does so gratuitously,
and Manuel. When Militar died, Jose contracted a second from pure generosity, without requiring from the transferee
marriage with Consolacion de la Torre with whom he had a any prestation.
child by the name of Juanito. Manuel died without leaving
any issue. Then Jose died intestate leaving his widow
Consolacion and his son Juanito, Ignacio, and Lorenzo. In De Los Reyes v. Paterno
the Intestate Proceeding, the court issued an
orderadjudicating, among others, the one-half (1/2) portion - The subject properties were the conjugal property of Tomas
of Lot No. 399 and the sum of P8,000.00 in favor of G. Del Rosario and his wife, Juana Reyes. Juana died and
Consolacion, the other half in favor of Juanito, P3,000.00 in her daughter Concepcion was declared to be her sole heir.
favor of Lorenzo; and P1,550.00 in favor of Ignacio. However, Concepcion died at the age of 9 and all her rights
- Juanito died intestate without any issue. After his death, is to the half of the property passed to her father, Tomas, who
mother Consolacion succeeded to his pro-indiviso share of was then already the owner of the other half. Tomas
her son Juanito. Consolacion then died intestate leaving no registered the properties and after a year his title thereto
direct heir either in the descending or ascending line except became absolute and complete.
her brother and sisters. - After 6 years, plaintiff in this case seeks to recover one half
- In the "Intestate Estate of Consolacion de la Torre", the of the subject properties, on the basis of reserva troncal.
petitioners herein, Ignacio, and Dominador and Remedios
Chua, the supposed legitimate children of the deceased Whether or not the plaintiff may still recover the property after
Lorenzo filed the complaint praying that the one-half (1/2) the lapse of one year from the finality of the registration
portion of Lot No. 399 which formerly belonged to Juanito proceedings on the ground of reserve troncal.
Frias Chua but which passed to Consolacion, be declared - No.
as reservable property for the reason that the lot in question - The reservable right may be lost to the holder when he fails
was subject to reserva troncal pursuant to Article 981 of the or neglects to oppose the registration of the land in which
New Civil such right exists under the Torrens System.
- The CFI rendered a decision dismissing the complaint of - Unless a reservable right is protected during the pendency
petitioners. According to it, the property in question was not of the action for the registration of land, or within the
acquired by Consolacion and Juanito gratuitously but for a allowable period to contest such as prescribed by law, such
consideration, namely, that the legatees were to pay the right is lost forever.
interest and cost and other fees resulting from Civil Case
No. 5300 to Standard Oil Co. of New York the amount of Sumaya v. IAC
P3,971.20
- Raul Balantakbo inherited 1/3 interest in a parcel of land
Whether the property in question as acquired by Juanito Frias from his father (1st property) and a 1/7 interest in 10
Chua from his father, Jose Frias Chua, gratuitously or not. parcels of lands from his maternal grandmother (2nd
- It is evident from the record that the transmission of the property).
property in question to Juanito upon the death of his father - Raul died intestate, single, and leaving only his mother,
Jose was by means of a hereditary succession and Consuelo, as his sole surviving heir to the real properties.
therefore gratuitous. - Subsequently, Consuelo adjudicated unto herself the said
- The obligation of paying the Standard is imposed upon properties by way of an affidavit.
Consolacion and Juanito not personally by the deceased - Consuelo sold the first property to Sumaya. Sumaya sold it
Jose in his last will and testament but by an order of the Villa Honorio which transferred and assigned it in favor of
court. As long as the transmission of the property to the Agro-Industrial.
heirs is free from any condition imposed by the deceased - The documents were registered in the RD of Laguan and
himself and the property is given out of pure generosity, it is corresponding certificates of titles were issued.
gratuitous. The order of the court does not change the - Consuelo later sold the 2nd property to Villa Honorio which
gratuitous nature of the transmission of the property to him. later transferred and assigned the same to Laguna Agro-
As far as the deceased Jose is concerned the transmission Industrial.
of the property to his heirs is gratuitous. This being the case - The parties admit that the certificates of titles covering
the lot in question is subject to reserva troncal under Art. these properties do not contain any annotation of its
891 of the New Civil Code. reservable character.
- In order that a property may be impressed with a - When Consuelo died, the brothers in full blood of Raul and
reservable character the following requisites must exist, to the surviving children of another brother of Raul filed a case
wit: (1) that the property was acquired by a descendant to recover the properties which they claimed were subject
from an ascendant or from a brother or sister by gratuitous to reserva troncal in their favor.
title; (2) that said descendant died without an issue: (3) that
the property is inherited by another ascendant by operation
of law; and (4) that there are relatives within the third
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Art. 904. The testator cannot deprive his Art. 905. Every renunciation or compromise as
compulsory heirs of their legitime, except in regards a future legitime between the person
cases expressly specified by law. owing it and his compulsory heirs is void, and
Neither can he impose upon the same any the latter may claim the same upon the death
burden, encumbrance, condition, or of the former; but they must bring to collation
substitution of any kind whatsoever. whatever they may have received by virtue of
the renunciation or compromise.
As already laid down in Art886, the legitime is not within
the testator’s control. It passes to the compulsory heirs Reason for the Rule
by strict operation of law. Before the predecessor’s death, the heir’s right is
simply inchoate.
Testator Devoid of Power to Deprive Compulsory
Heirs of Legitime Duty to Collate
It is the law, not the testator, which determines the Any property which the compulsory heir may have
transmission of the legitimes. Consequently, it is not gratuitously received from his predecessor by virtue
within the testator’s power to deprive the compulsory of the renunciation or compromise will be considered
heirs of their legitime. an advance on his legitime and must be duly
EXCEPTION – the only instance in which the law credited.
allows the testator to deprive the compulsory heirs of
their legitimes is DISINHERITANCE under Arts915-
923, the grounds being set forth under Arts919-921.
Scope of Prohibition
Testator Devoid of Power to Impose Burdens on This article applies only to transactions of
Legitime compromise or renunciation between the
As also reiterated in Art872, the testator cannot predecessor and the prospective compulsory heir.
impair the legitime, as a consequence of the
principle that the legitime passes by strict operation QUESTION – Is a transaction between the prospective
of law. compulsory heir and another prospective compulsory
heir, or between a prospective compulsory heir and a
EXCEPTIONS – When the Law grants the Testator stranger, interdicted?
Some Power over the Legitime YES under Article 1347 par2: “No contract may be
1. Article 1080 par2 – entered into upon future inheritance except in cases
“A parent who, in the interest of his or her expressly provided by law.”
family, desires to keep any agricultural, industrial,
or manufacturing enterprise intact, may avail
himself of the right granted him in this article, by Art. 906. Any compulsory heir to whom the
ordering that the legitime of the other children to testator has left by any title less than the
whom the property is not assigned, be paid in legitime belonging to him may demand that
cash.”
the same be fully satisfied.
2. Article 1083 par1 –
“Every co-heir has a right to demand the RIGHT OF COMPLETION OF LEGITIME
division of the estate unless the testator should This rule applies only to transmissions by gratuitous
have expressly forbidden its partition, in which title.
case the period of indivision shall not exceed 20
years as provided in article 494. This power of the Cross-References, related articles
testator to prohibit division applies to the legitime.” Art855 – if the title by which the testator transmitted
property is intestate succession
Art. 855. The share of a child or descendant omitted in a will
Restrictions on Legitime Imposed by Law
must first be taken from the part of the estate not disposed of by the
A. Article 159, Family Code
will, if any; if that is not sufficient, so much as may be necessary
“The Family Home shall continue despite the must be taken proportionally from the shares of the other
death of one or both spouses or of the unmarried compulsory heirs.
head of the family for a period of 10 years or for
as long as there is a minor beneficiary, and the In relation to Arts909 and 910
heirs cannot partition the same unless the court
finds compelling reasons therefor. This rule shall
apply regardless of whoever owns the property or
constituted the family home.”
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DEVISES/LEGACIES OF USUFRUCT/ LIFE This article applies if neither party [the compulsory heir/s
ANNUITIES/ PENSIONS UNDER PAR. 3 and the devisee] elects to exercise his right under
The following principles shall be borne in mind: Art912.
A. If, upon being capitalized according to actuarial
standards, the value of the grant exceeds the How the Thing Devised Should be Disposed Of:
free portion [i.e. it impairs the legitime], it has to A. Any other heir or devisee, who elects to do so,
be reduced, because the legitime cannot be may acquire the thing and pay the parties [the
impaired. compulsory heir and the devisee in question] their
B. The testator can impose no usufruct or any respective shares in money.
other encumbrance on the part that passes as B. If no heir or devisee elects to acquire it, it shall be
legitime. sold at public auction and the net proceeds
C. Subject to the 2 rules stated, the compulsory accordingly divided between the parties
heirs may elect between: concerned.
i. Ceding to the devisee/legatee the free
portion[or the proportional part thereof Note – this rule of constructive partition is similar to that
corresponding to the said legacy/devise, in in co-ownership [Art498] and in partition of the
case there are other dispositions], or decedent’s estate [Art1086], except that, in these two
ii. Complying with the terms of the usufruct or latter cases, the acquisition by one of the co-owners or
life annuity or pension. co-heirs can be done only if all the co-owners or co-heirs
agree to such acquisition.
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1. It must be made in a Will 3. It must Specify the cause [Arts 916 and 918]
- Must be formally valid and admitted to probate - If this is not present, there is ineffective
disinheritance under article 918.
2. It must be for a Cause specified by law under
Articles 916 in relation to Articles 919-921 4. It must be Unconditional
- For Descendants [Article 919] 5. It must be Total
a) Guilty of an Attempt Against the Life of the
6. The cause must be True
Testator or the latter’s spouse, descendants
or ascendants 7. If the truth of the cause is Denied, it must be
b) Accused Testator of Crime punishable by 6 Proved by the proponent.
years or more, and the accusation is found to - If the controverted cause is not proved, there
be Groundless is ineffective disinheritance under article 918.
c) Convicted of Adultery or Concubinage with - All the disinherited heir need do is deny the
Spouse of the Testator cause and the burden is thrown upon those
d) By Fraud, Violence, Intimidation or Undue who would uphold the disinheritance.
Influence causes Testator to Make Will or
Change 1 already made.
e) Refusal without justifiable cause to support
the parent or ascendant who disinherits
f) Maltreatment of testator by word/deed Note – the strictness of the requisites indicates the policy
g) Leads dishonorable or disgraceful life of the law. It regards disinheritance with disfavor and will
h) Conviction of a crime carrying civil interdiction grant it only with reluctance, because disinheritance
results in deprivation of legitime.
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This article sets forth requisites 3 and 6 of disinheritance. There are 8 Causes for disinheritance of Children or
Descendants – Whether Legitimate or Illegitimate
INEFFECTIVE DISINHERITANCE [Exclusive enumeration]
If the disinheritance lacks one or other of the 1. Has been found Guilty of an Attempt Against
requisites mentioned in this article, the heir in the Life of the Testator or the latter’s spouse,
question gets his legitime. descendants or ascendants
As to whether he will also get any part of the o The word attempt here is used non-
intestate portion or not, this depends on whether the technically and should not be construed to
testator gave away the free portion through limit the provision to the attempted stage of
testamentary dispositions. the felony.
o If he did, these dispositions are VALID and the o All stages of commission are included –
compulsory heir improperly disinherited gets whether attempted, frustrated, or
only his legitime. consummated.
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o The felony, obviously, must be an intentional Payment shall be made within the first five days of
one. each corresponding month or when the recipient dies,
o FINAL CONVICTION is required. his heirs shall not be obliged to return what he has
o Question – must the disinheritance be received in advance.
subsequent to the conviction or may it
precede the conviction? o The demand must have been unjustifiably
- By the wording of the law, it seems that it refused. Refusal may be justified if the obligor
must be subsequent [?] does not have enough resources for all whom
he is obliged to support. The ascendants are
2. Has Accused the Testator of a Crime only 3rd in the hierarchy of preference among
punishable by 6 years or more, and the claimants of support [under Art200 par3 of the
accusation is found to be Groundless Family Code].
o The word accused here is used generically
and will include: Art. 200. When the obligation to give support falls upon two
a) Filing of a complaint before the or more persons, the payment of the same shall be
divided between them in proportion to the resources of
prosecutor, or
each.
b) Presenting incriminating evidence However, in case of urgent need and by special
against the testator, or circumstances, the judge may order only one of them to
c) Even suppressing exculpatory furnish the support provisionally, without prejudice to his
evidence right to claim from the other obligors the share due from
o The crime of which the testator is accused them.
must carry a penalty of at least 6 years When two or more recipients at the same time claim
imprisonment. support from one and the same person legally obliged to
- Prof. Balane says that the terminology give it, should the latter not have sufficient means to
used should be “more than 6 years satisfy all claims, the order established in the preceding
article shall be followed, unless the concurrent obligees
imprisonment” because 6 years still falls
should be the spouse and a child subject to parental
within prision correccional. 1 day beyond
authority, in which case the child shall be preferred.
that places it within the next higher
penalty of prision mayor. 6. Maltreatment of the testator by word or deed
- If the penalty prescribed is prision o This will include a wide range of misdeeds,
correccional, does it fall under the but it is required that the act of verbal or
contemplation of this paragraph? physical assault is of a serious nature.
o The testator must be ACQUITTED. o No conviction is required, in fact, it is not even
o The accusation must be found to be required that any criminal case be filed.
groundless, i.e. the judgment of acquittal o Consequently, a physical assault that would
must state that either – not fall under par1 as an attempt against the
a) No crime was committed or life of the testator, the latter’s spouse,
b) The accused did not commit the crime descendants or ascendants, can fall under
this paragraph.
o An acquittal based on reasonable ground will
not be a ground for disinheritance. 7. Leads a dishonorable or disgraceful life
o The operative word here is “lead.” There must
3. Has been Convicted of Adultery or be habituality to the conduct to make it fall
Concubinage with the Spouse of the Testator under this paragraph.
o Final Conviction is required o The dishonorable or disgraceful conduct or
o Same question – must the disinheritance be pattern of behavior need not be sexual in
subsequent to the conviction? nature, although it may often be that. Surely,
a child or descendant whose livelihood is
4. By Fraud, Violence, Intimidation or Undue drug-pushing or smuggling is living a
Influence causes the Testator to Make a Will or dishonorable and disgraceful life.
Change one already made.
8. Conviction of a crime carrying civil interdiction
5. Refusal W/O justifiable cause to Support the o Final Conviction is required.
parent or ascendant who disinherits o The accessory penalty of civil interdiction is
o There must have been a need and a demand imposed with the principal penalties of death,
for support [in relation to Art 203 of the Family reclusion perpetua and reclusion temporal
Code] [under Articles 40-41 of the RPC].
Art. 203. The obligation to give support shall be
o Same question – must the disinheritance be
demandable from the time the person who has a right to
receive the same needs it for maintenance, but it shall
subsequent to the conviction?
not be paid except from the date of judicial or extra-
judicial demand.
Support pendente lite may be claimed in accordance
with the Rules of Court.
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Art. 920. The following shall be sufficient causes b) Inducement to live a corrupt and
for the disinheritance of parents or immoral life – under Art231[2] of the
ascendants, whether legitimate or illegitimate: Family Code as a ground for
(1) When the parents have abandoned their suspension or deprivation of parental
authority.
children or induced their daughters to live
a corrupt or immoral life, or attempted c) Attempt against Virtue – no
against their virtue; conviction is required here.
(2) When the parent or ascendant has been
2. Convicted of attempt against life of testator,
convicted of an attempt against the life of his or her spouse, descendant or ascendants.
the testator, his or her spouse,
descendants, or ascendants; 3. Has Accused testator of a Crime punishable by
(3) When the parent or ascendant has Imprisonment for 6 years or more, if the
accused the testator of a crime for which accusation has been found to be False.
the law prescribes imprisonment for six
years or more, if the accusation has been 4. Has been Convicted of adultery or
found to be false; concubinage with the spouse of the testator.
(4) When the parent or ascendant has been
5. By Fraud, Violence, Intimidation or Undue
convicted of adultery or concubinage with Influence causes testator to Make a Will or
the spouse of the testator; Change one already made.
(5) When the parent or ascendant by fraud,
violence, intimidation, or undue influence 6. The Loss of Parental Authority for causes
causes the testator to make a will or to specified in this Code
change one already made; o Not all causes for loss of parental authority
(6) The loss of parental authority for causes are grounds for disinheritance. For instance,
specified in this Code; attainment of the age of majority is not a
(7) The refusal to support the children or ground. Only those causes which involve
culpability on the part of the parents will
descendants without justifiable cause;
provide grounds for disinheritance.
(8) An attempt by one of the parents against a) Judicial deprivation of parental
the life of the other, unless there has been authority based on ground of sexual
a reconciliation between them. abuse [Arts232 FC]
b) Loss of parental authority as a result of
There are also 8 Causes for the Disinheritance of Judicial declaration of abandonment of
Parents or Ascendants, whether Legitimate or a child [Art229(3) FC]
Illegitimate. [Exclusive enumeration] c) Judicial Deprivation of Parental
1. When the parents have abandoned their Authority on the grounds of:
children or induced their daughters to live a i. Excessively harsh or cruel
corrupt or immoral life or attempted against treatment of the child
their virtue ii. Giving the child corrupting orders,
o This paragraph encompasses 3 grounds: counsel or example.
a) Abandonment – also includes those iii. Compelling the child to beg, or
penalized by law under articles 276- iv. Subjecting the child or allowing
277 of the RPC, Article 59 of PD603 him to be subjected to acts of
and all conduct constituting repeated lasciviousness [Art231 FC]
or total refusal or failure to care for the
child. According to the case of Chua v. 7. Refusal to support the Children or
Cabangbang, mere acquiescence Descendants without justifiable cause
without more is not sufficient to
constitute abandonment. However, 8. Attempt by one of the parents against the life
when the mother completely withheld of the other, unless there has been a
her presence, her love, her care and reconciliation between them.
the opportunity to show maternal
affection; and totally denied her Paragraphs 2, 3, 4, 5 and 7 are the same grounds for
support and maintenance, her silence disinheritance of a descendant or child.
and inaction having been prolonged for
such a time, then it can be legally
inferred that there is abandonment.
Question – will consent to adoption of
a child constitute abandonment?
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Art. 944. A legacy for education lasts until the Legacy of a Periodical Pension
legatee is of age, or beyond the age of Demandability – upon the testator’s death and the
majority in order that the legatee may finish succeeding ones at the beginning of the period
some professional, vocational or general without duty to reimburse should the legatee due
before the lapse of the period.
course, provided he pursues his course
diligently. NOTE – this should be harmonized with the rules on
A legacy for support lasts during the settlement of estates, i.e. the debts should first be
lifetime of the legatee, if the testator has not paid before any testamentary grants can be
complied with [unless the legatee files a BOND
otherwise provided.
under Rule 90 sec1 of ROC]. However, should the
If the testator has not fixed the amount of legacy prove to be inofficious, the date of effectivity
such legacies, it shall be fixed in accordance shall retroact to the decedent’s death.
with the social standing and the
circumstances of the legatee and the value of
the estate. Art. 946. If the thing bequeathed should be
If the testator or during his lifetime used subject to a usufruct, the legatee or devisee
to give the legatee a certain sum of money or shall respect such right until it is legally
other things by way of support, the same extinguished.
amount shall be deemed bequeathed, unless
it be markedly disproportionate to the value This article lays down the same rule as Art934 par3.
of the estate.
Art. 945. If a periodical pension, or a certain Art. 947. The legatee or devisee acquires a right
annual, monthly, or weekly amount is to the pure and simple legacies or devises
bequeathed, the legatee may petition the from the death of the testator, and transmits it
court for the first installment upon the death to his heirs.
of the testator, and for the following ones
Demandability, Ownership and Fruits of Legacies/
which shall be due at the beginning of each
Devises
period; such payment shall not be returned,
even though the legatee should die before the Demand- When Fruits
expiration of the period which has ability Ownership
commenced. Vests
Pure and Upon Upon Testator’s Upon the
Legacy for Education Determinate Testator’s death testator’s death
Duration – age of majority or the completion of a death [under Art948]
professional, vocational or general course, Pure and Upon a. if from Upon determi-
whichever comes later. In the latter instance, only if Generic Testator’s testator’s estate nation, unless
the legatee pursues his studies diligently. death – upon testator’s testator provides
death otherwise
Amount
b. if acquired [Art949]
o Primarily – that fixed by the testator
from a 3rd
o Secondarily – that which is proper, as person – upon
determined by 2 variables: [1] the social acquisition
standing and circumstances of the legatee, With a Upon the Upon arrival of Upon the arrival
and [2] the value of the disposable portion of Suspensive arrival of the the term, but the of the term
the estate. Term term right to it vests [implied from
upon the Art885]
Legacy for Support testator’s death
Duration – the legatee’s lifetime, unless the testator [under Art878]
has provided otherwise With a Upon the Upon the Upon the
Amount Suspensive happening of testator’s death, happening of the
o Primarily – that fixed by the testator Condition the condition if the condition is condition, unless
o Secondarily – that which the testator during fulfilled [under testator provides
his lifetime used to give the legatee by way of Art1187] otherwise
support, unless markedly disproportionate to [Art884 in rel. to
the value of the disposable portion Art1187]
o Tertiarily – that which is reasonable, on the
basis of 2 variables: [1] the social standing Art. 1187. The effects of a conditional obligation to give, once the condition
and the circumstances of the legatee, and [2] has been fulfilled, shall retroact to the day of the constitution of the
the value of the disposable portion. obligation. Nevertheless, when the obligation imposes reciprocal
prestations upon the parties, the fruits and interests during the pendency
of the condition shall be deemed to have been mutually compensated. If
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the obligation is unilateral, the debtor shall appropriate the fruits and preferred legacies/devises will be reduced pro rata,
interests received, unless from the nature and circumstances of the and the preferred legacies/devises are reduced last.
obligation it should be inferred that the intention of the person constituting It is a rule different from that set forth in Art950.
the same was different.
In obligations to do and not to do, the courts shall determine, in each Possible reconciliation between the 2 articles – each
case, the retroactive effect of the condition that has been complied with. article can be given its own area of applicability.
o Article 911 will apply if reductions have to be
made because the LEGITIMES have been
impaired, i.e. if the legacies/devises have
Art. 948. If the legacy or device is of a specific exceeded the disposable portion
and determinate thing pertaining to the o Article 950 will apply if the reason for the
testator, the legatee or devisee acquires the reduction is not the impairment of legitimes,
ownership thereof upon the death of the i.e. there are no legitimes because there are
testator, as well as any growing fruits, or no compulsory heirs or the legitimes have
unborn offspring of animals, or uncollected already been satisfied through donations inter
income; but not the income which was due vivos.
and unpaid before the latter's death.
From the moment of the testator's death,
Art. 951. The thing bequeathed shall be delivered
the thing bequeathed shall be at the risk of
with all its accessories and accessories and
the legatee or devisee, who shall, therefore,
in the condition in which it may be upon the
bear its loss or deterioration, and shall be
death of the testator.
benefited by its increase or improvement,
without prejudice to the responsibility of the The obligation to deliver the accessions and accessories
executor or administrator. exists even if the testator does not explicitly provide for it.
This is the same rule laid down in Art1166, which
Art. 949. If the bequest should not be of a specific provides:
and determinate thing, but is generic or of Art. 1166. The obligation to give a determinate thing includes that
quantity, its fruits and interests from the time of delivering all its accessions and accessories, even though they may
not have been mentioned
of the death of the testator shall pertain to the
legatee or devisee if the testator has The crucial time is the testator’s death, because that is
expressly so ordered. when successional rights vest [under Art777]. That is
why the thing must be delivered in the condition in which
Art. 950. If the estate should not be sufficient to it is at that time.
cover all the legacies or devises, their
payment shall be made in the following order:
(1) Remuneratory legacies or devises; Art. 952. The heir, charged with a legacy or
(2) Legacies or devises declared by the devise, or the executor or administrator of the
testator to be preferential; estate, must deliver the very thing
(3) Legacies for support; bequeathed if he is able to do so and cannot
(4) Legacies for education; discharge this obligation by paying its value.
(5) Legacies or devises of a specific, Legacies of money must be paid in cash,
determinate thing which forms a part of even though the heir or the estate may not
the estate; have any.
(6) All others pro rata. The expenses necessary for the delivery
of the thing bequeathed shall be for the
Order of Preference among Legacies and Devises in account of the heir or the estate, but without
case the Estate is Not Sufficient for All of them prejudice to the legitime.
1. Remuneratory legacies or devises
2. Legacies or devises declared by the testator to be This article conforms to the rule of identity in the
preferential performance of obligations [under Art1244]:
3. Legacies for support
4. Legacies for education Art. 1244. The debtor of a thing cannot compel the creditor to receive a
5. Legacies or devises of a specific, determinate different one, although the latter may be of the same value as, or
more valuable than that which is due.
thing which forms a part of the estate
6. All others, pro rata In obligations to do or not to do, an act or forbearance cannot be
substituted by another act or forbearance against the obligee's will.
Article 950 and Article 911
Article 911 also contains a rule for reduction of
legacies and devises and the order of preference
there is different: it simply provides that all the non-
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Art. 953. The legatee or devisee cannot take 2 Legacies/Devises to the Same Recipient
possession of the thing bequeathed upon his o If both gratuitous – the recipient may accept
own authority, but shall request its delivery or renounce either or both
and possession of the heir charged with the o If both onerous – same rule, may accept or
renounce either or both
legacy or devise, or of the executor or
o If one gratuitous and the other onerous – the
administrator of the estate should he be recipient cannot accept the gratuitous and
authorized by the court to deliver it. renounce the onerous. Any other combination
is permitted.
Although the efficacy of a legacy or devise vests upon
the testator’s death, actual delivery does not take place Legacy/Devise to One who is Also a Compulsory
at that time. Debts first have to be paid, then legitimes Heir – the recipient may accept either or both, the
have to be determined, and the testamentary legacy/devise and the legitime. [in relation to
dispositions (including legacies and devises) computed Art1055]
lest they impair the legitimes. It is only after these steps
have been taken that the beneficiaries of the will can Effect if the Will Provides Otherwise – all of the
take possession. above rules apply in the absence of a stipulation in
the will providing otherwise. If there is a stipulation,
the testator’s wishes shall govern.
Art. 954. The legatee or devisee cannot accept a
part of the legacy or devise and repudiate the
other, if the latter be onerous. Art. 956. If the legatee or devisee cannot or is
Should he die before having accepted the unwilling to accept the legacy or devise, or if
legacy or devise, leaving several heirs, some the legacy or devise for any reason should
of the latter may accept and the others may become ineffective, it shall be merged into the
repudiate the share respectively belonging to mass of the estate, except in cases of
them in the legacy or devise. substitution and of the right of accretion.
Art. 955. The legatee or devisee of two legacies or Rules in Case of Repudiation by or Incapacity of
devises, one of which is onerous, cannot Legatee/Devisee
renounce the onerous one and accept the 1. Primarily – SUBSTITUTION
2. Secondarily – ACCRETION
other. If both are onerous or gratuitous, he
3. Tertiarily – INTESTACY
shall be free to accept or renounce both, or to
renounce either. But if the testator intended
that the two legacies or devises should be Art. 957. The legacy or devise shall be without
inseparable from each other, the legatee or effect:
devisee must either accept or renounce both. (1) If the testator transforms the thing
Any compulsory heir who is at the same bequeathed in such a manner that it
time a legatee or devisee may waive the does not retain either the form or the
inheritance and accept the legacy or devise, denomination it had;
or renounce the latter and accept the former, (2) If the testator by any title or for any
or waive or accept both. cause alienates the thing bequeathed or
any part thereof, it being understood
Rules on Acceptance and Repudiation of Legacies / that in the latter case the legacy or
Devises
devise shall be without effect only with
Legacies ma be total or partial, as implied under
Art954 par1. respect to the part thus alienated. If
o Exception – If the legacy/devise is partly after the alienation the thing should
onerous and partly gratuitous, the recipient again belong to the testator, even if it be
cannot accept the gratuitous part and by reason of nullity of the contract, the
renounce the onerous part. Any other legacy or devise shall not thereafter be
combination however is permitted. valid, unless the reacquisition shall
have been effected by virtue of the
Acceptance or Repudiation by Heirs of Legatee/ exercise of the right of repurchase;
Devisee – if the legatee or devisee dies before
(3) If the thing bequeathed is totally lost
accepting or renouncing, his heirs shall exercise
such right as to their pro-indiviso share, and in the during the lifetime of the testator, or
same manner as the legatee or devisee. after his death without the heir's fault.
Nevertheless, the person obliged to pay
the legacy or devise shall be liable for
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CASES Articles 924-959 2. When the will does not institute an heir to, or
dispose of all the property belonging to the
Belen v. BPI testator. In such case, legal succession shall
take place only with respect to the property of
which the testator has not disposed.
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o In these instances, intestacy may be total sideways. Thus, the law first calls the descendants,
or partial. then the ascendants and finally the collaterals,
always preferring those closer in degree than those
3. If the suspensive condition attached to the of remoter degrees.
institution of an heir does not happen or is not
fulfilled, or if the heir dies before the testator,
or repudiates the inheritance, there being no BASIC RULES OF INTESTACY
substitution and no right of accretion takes 1. The Rule of Preference of Lines
place The 3 lines of relationship are:
o Intestacy here may also be total or partial, a) The descending
depending on the extent of the disposition b) The ascending, and
that turns out to be inoperative. c) The collateral
4. When the heir instituted is incapable of The law lays down an order of preference
succeeding, except in cases provided in this among these lines, such that the
Code. descending excludes the ascending and
o Incapacity to succeed under Articles 1027, the collateral, and the ascending excludes
1028 and 1032. Intestacy here may be total the collateral.
or partial. 2. The Rule of Proximity of Degree
The nearer exclude the more remote
Other Causes of Intestacy [Art962 par1] without prejudice to
5. Happening of a Resolutory Condition representation.
6. Expiration of a Resolutory Term
7. Preterition 3. The Rule of Equality Among Relatives of the
Same Degree
This rule is corollary of the previous one: If
Art. 961. In default of testamentary heirs, the law the nearer exclude the more remote,
logically those of equal degree should
vests the inheritance, in accordance with the
inherit in equal shares [Art962 par2]
rules hereinafter set forth, in the legitimate 5 EXCEPTIONS
and illegitimate relatives of the deceased, in a) The rule of preference of lines
the surviving spouse, and in the State. b) The distinction between legitimate
and illegitimate filiation [the ratio
Art. 962. In every inheritance, the relative nearest under present law is 2:1] under
in degree excludes the more distant ones, Article 983 in relation to Article 895
saving the right of representation when it as amended by Art176 of the Family
properly takes place. Code.
c) The Rule of Division by line in the
Relatives in the same degree shall inherit
Ascending Line under Art987 par2
in equal shares, subject to the provisions of d) The Distinction between Full-Blood
article 1006 with respect to relatives of the full and Half-Blood relationship among
and half blood, and of Article 987, paragraph Brothers and Sisters, as well as
2, concerning division between the paternal nephews and nieces under Articles
and maternal lines. 1006 and 1008.
e) Representation
Exclusion and Concurrence in Intestacy
Intestacy operates on the same principles as
succession to the legitime. There are 2 principles
operating sometimes simultaneously, sometimes SUBSECTION 1. - Relationship
singly – EXCLUSION and CONCURRENCE.
Art. 963. Proximity of relationship is determined
Groups of intestate heirs and the different combinations
by the number of generations. Each
in intestacy are outlined under Arts. 978-1010.
generation forms a degree.
Basis of Intestate Succession Art. 964. A series of degrees forms a line, which
The presumed will of the decedent, which would may be either direct or collateral.
distribute the estate in accordance with the love and
A direct line is that constituted by the
affection he has for his family and close relatives,
and in default of these persons, the presumed desire series of degrees among ascendants and
of the decedent to promote charitable and descendants.
humanitarian activities. A collateral line is that constituted by the
Manresa says that the law of intestacy is founded on series of degrees among persons who are not
the presumed will of the deceased. Love, it is said
first descends, then ascends, and finally spreads
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represent would inherit, if he were living or nephews and nieces representing brothers and
could inherit. sisters of the deceased [Art975]
Art. 975. When children of one or more brothers REPRESENTATION BY ILLEGITIMATE CHILDREN
If the child to be represented is legitimate – only
or sisters of the deceased survive, they shall
legitimate children/descendants can represent him
inherit from the latter by representation, if [Art992]
they survive with their uncles or aunts. But if If the child to be represented is illegitimate – BOTH
they alone survive, they shall inherit in equal legitimate and illegitimate children/descendants can
portions. represent him [Arts902, 989 and 990]
Legitimate Illegitimate
Art. 977. Heirs who repudiate their share may not
be represented. A B
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PROBLEM ON REPRESENTATION
Note, I’m not sure about the answers, please re-check
A B C D E
C1 C2 D1 D2 E1 E2
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1. Legitimate Whole estate, equally divided Art. 979. Legitimate children and their descendants succeed the parents
children and other ascendants, without distinction as to sex or age, and even
if they should come from different marriages.
An adopted child succeeds to the property of the adopting
parents in the same manner as a legitimate child.
2. Legitimate Whole estate with ½ share of 1 Art. 983. If illegitimate children survive with legitimate children, the shares
children and legit child for EACH illegitimate of the former shall be in the proportions prescribed by Article 895.
Illegitimate child Art. 176 FAMILY CODE. Illegitimate children shall use the surname and
children shall be under the parental authority of their mother, and shall be
entitled to support in conformity with this Code. The legitime of each
illegitimate child shall consist of one-half of the legitime of a
legitimate child. Except for this modification, all other provisions in the
Civil Code governing successional rights shall remain in force.
3. Legitimate Whole estate, divided equally, Art. 996. If a widow or widower and legitimate children or descendants
children and including the surviving spouse are left, the surviving spouse has in the succession the same share
surviving spouse as that of each of the children.
4. Legitimate Whole estate, the spouse getting Art. 999. When the widow or widower survives with legitimate children or
children, the share of 1 legitimate child their descendants and illegitimate children or their descendants,
surviving spouse and the illegitimate child getting whether legitimate or illegitimate, such widow or widower shall be
and illegitimate ½ the share of 1 legitimate child. entitled to the same share as that of a legitimate child.
children Art. 176 FAMILY CODE. Illegitimate children shall use the surname and
shall be under the parental authority of their mother, and shall be
entitled to support in conformity with this Code. The legitime of each
illegitimate child shall consist of one-half of the legitime of a
legitimate child. Except for this modification, all other provisions in the
Civil Code governing successional rights shall remain in force.
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5. Legitimate Whole estate, equally Art. 985. In default of legitimate children and descendants of the
parents alone deceased, his parents and ascendants shall inherit from him, to the
exclusion of collateral relatives.
6. Legitimate Whole estate, division equally by Art. 987. In default of the father and mother, the ascendants nearest in
ascendants line degree shall inherit.
Should there be more than one of equal degree belonging to the
same line they shall divide the inheritance per capita; should they be
of different lines but of equal degree, one-half shall go to the paternal
and the other half to the maternal ascendants. In each line the
division shall be made per capita.
7. Legitimate Legitimate parents get ½ of the Art. 991. If legitimate ascendants are left, the illegitimate children shall
parents and estate divided equally between divide the inheritance with them, taking one-half of the estate,
illegitimate them and the illegitimate children whatever be the number of the ascendants or of the illegitimate
children get ½ of the estate divided also children.
equally
8. Legitimate Legit parents get ½ of the estate Art. 997. When the widow or widower survives with legitimate parents or
parents and and the surviving spouse gets ascendants, the surviving spouse shall be entitled to one-half of the
surviving spouse the other half estate, and the legitimate parents or ascendants to the other half.
9. Legitimate Legit parents get ½, the surviving Art. 1000. If legitimate ascendants, the surviving spouse, and illegitimate
parents, spouse gets ¼ and the children are left, the ascendants shall be entitled to one-half of the
surviving spouse illegitimate children get ¼. inheritance, and the other half shall be divided between the surviving
and illegitimate spouse and the illegitimate children so that such widow or widower
children shall have one-fourth of the estate, and the illegitimate children the
other fourth.
10. Illegitimate The whole estate, divided equally Art. 988. In the absence of legitimate descendants or ascendants, the
children illegitimate children shall succeed to the entire estate of the
deceased.
11. Illegitimate The illegitimate children get ½ Art. 998. If a widow or widower survives with illegitimate children, such
children and and the surviving spouse gets widow or widower shall be entitled to one-half of the inheritance, and
surviving spouse the other ½ the illegitimate children or their descendants, whether legitimate or
illegitimate, to the other half.
12. Surviving spouse The whole estate Art. 994. In default of the father or mother, an illegitimate child shall be
succeeded by his or her surviving spouse who shall be entitled to the
entire estate.
If the widow or widower should survive with brothers and
sisters, nephews and nieces, she or he shall inherit one-half of the
estate, and the latter the other half.
13. Surviving spouse Spouse gets ½ of estate, No provision, but by analogy to Art997.
and illegitimate illegitimate parents get the other Art. 997. When the widow or widower survives with legitimate parents or
parents ½ ascendants, the surviving spouse shall be entitled to one-half of the
estate, and the legitimate parents or ascendants to the other half.
14. Surviving spouse Spouse gets ½ and the Art. 1001. Should brothers and sisters or their children survive with the
and legitimate legitimate BSNN get ½, with the widow or widower, the latter shall be entitled to one-half of the
brothers, sisters, nephews and nieces inheriting by inheritance and the brothers and sisters or their children to the other
nephews and representation in proper cases half.
nieces
15. Surviving spouse Spouse gets ½ while illegitimate Art. 994. In default of the father or mother, an illegitimate child shall be
and illegitimate BSNN get ½, with representation succeeded by his or her surviving spouse who shall be entitled to the
brother, sisters, entire estate.
nephews and If the widow or widower should survive with brothers and
nieces sisters, nephews and nieces, she or he shall inherit one-half of the
estate, and the latter the other half.
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16. Illegitimate The whole estate Art. 993. If an illegitimate child should die without issue, either legitimate
parents or illegitimate, his father or mother shall succeed to his entire estate;
and if the child's filiation is duly proved as to both parents, who are
both living, they shall inherit from him share and share alike.
17. Illegitimate Illegitimate parents are excluded Art. 993. If an illegitimate child should die without issue, either legitimate
parents and any by the children or illegitimate, his father or mother shall succeed to his entire estate;
children and if the child's filiation is duly proved as to both parents, who are
both living, they shall inherit from him share and share alike.
18. Legitimate Whole estate, half blood gets ½ Art. 1004. Should the only survivors be brothers and sisters of the full
brothers and of full blood’s share [2:1] blood, they shall inherit in equal shares.
sisters Art. 1006. Should brother and sisters of the full blood survive together
with brothers and sisters of the half blood, the former shall be entitled
to a share double that of the latter.
19. Legitimate Whole estate, 2:1 for half blood, Art. 1005. Should brothers and sisters survive together with nephews and
brothers & with representation for nephews nieces, who are the children of the descendant's brothers and sisters
sisters, nephews and nieces of the full blood, the former shall inherit per capita, and the latter per
& nieces stirpes.
Art. 1008. Children of brothers and sisters of the half blood shall succeed
per capita or per stirpes, in accordance with the rules laid down for
the brothers and sisters of the full blood.
20. Nephews and Uncles and aunts are excluded. Art. 1009. Should there be neither brothers nor sisters nor children of
nieces with The nephews and nieces get the brothers or sisters, the other collateral relatives shall succeed to the
uncles and aunts whole estate estate.
The latter shall succeed without distinction of lines or
preference among them by reason of relationship by the whole blood.
And the case of Bacayo v Borromeo
21. Illegitimate Whole estate, 2:1 full and half No article governing
brothers and blood
sisters
22. Illegitimate Whole estate No article governing
brothers &
sisters, nephews
& nieces
23. Nephews and Whole, PER CAPITA, 2:1 ratio Art. 975. When children of one or more brothers or sisters of the
nieces deceased survive, they shall inherit from the latter by representation,
if they survive with their uncles or aunts. But if they alone survive,
they shall inherit in equal portions.
Art. 1008. Children of brothers and sisters of the half blood shall succeed
per capita or per stirpes, in accordance with the rules laid down for
the brothers and sisters of the full blood.
24. Other collaterals Whole, PER CAPITA, nearer Art. 1009. Should there be neither brothers nor sisters nor children of
excludes the more remote in brothers or sisters, the other collateral relatives shall succeed to the
degree estate.
The latter shall succeed without distinction of lines or
preference among them by reason of relationship by the whole blood.
Art. 1010. The right to inherit ab intestato shall not extend beyond the
fifth degree of relationship in the collateral line.
25. The state Whole estate Art. 1011. In default of persons entitled to succeed in accordance with
the provisions of the preceding Sections, the State shall inherit the
whole estate.
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Art. 978. Succession pertains, in the first place, to Art. 983. If illegitimate children survive with
the descending direct line. legitimate children, the shares of the former
shall be in the proportions prescribed by
WHO ARE THE INTESTATE HEIRS [not in order] Article 895.
A. Legitimate Children/Descendants
B. Illegitimate Children/Descendants The proportion of the shares of legitimate and illegitimate
C. Legitimate Parents/Ascendants children has been simplified to 2:1 by virtue of the
D. Illegitimate Parents amendments introduced by Articles 163 and 176 of the
E. Surviving Spouse Family Code.
F. Brothers, Sisters, Nephews, Nieces
In this combination, care should be taken lest the
G. Other Collaterals up to the 5th degree
legitimes of the legitimate children be impaired.
H. The State
Consequently, a 2-step process should be observed –
1) Segregate the legitimes of the children – both
The first 5 classes of intestate heirs are also
legitimate and illegitimate
compulsory heirs.
2) If any residue is left, apportion it in the
There is also an overlapping of compulsory and
proportion of 2:1.
intestate succession, i.e. the legitime and the
intestate portions merge. It is possible – depending on the number of legitimates
There is a very close parallel between the rules of and illegitimates – that the estate may not even be
compulsory succession and those of intestate sufficient to satisfy the legitimes, in which case, the
succession. second step in the process will not even be feasible. In
fact, in such case, the legitimes of the ILLEGITIMATES
will have to be reduced pro rata.
Art. 979. Legitimate children and their
descendants succeed the parents and other
ascendants, without distinction as to sex or Art. 984. In case of the death of an adopted child,
age, and even if they should come from leaving no children or descendants, his
different marriages. parents and relatives by consanguinity and
An adopted child succeeds to the not by adoption, shall be his legal heirs.
property of the adopting parents in the same
manner as a legitimate child. Repealed by Sections 17 and 18 of RA8552.
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SUBSECTION 2. - Ascending Direct Line Art. 991. If legitimate ascendants are left, the
illegitimate children shall divide the
Art. 985. In default of legitimate children and inheritance with them, taking one-half of the
descendants of the deceased, his parents and estate, whatever be the number of the
ascendants shall inherit from him, to the ascendants or of the illegitimate children.
exclusion of collateral relatives.
Art. 992. An illegitimate child has no right to
Art. 986. The father and mother, if living, shall inherit ab intestato from the legitimate
inherit in equal shares. children and relatives of his father or mother;
Should one only of them survive, he or nor shall such children or relatives inherit in
she shall succeed to the entire estate of the the same manner from the illegitimate child.
child.
MEMORIZE!
Art. 987. In default of the father and mother, the This is the well-known and much criticized successional
ascendants nearest in degree shall inherit. barrier between legitimate and illegitimate relatives of a
Should there be more than one of equal decedent.
degree belonging to the same line they shall
CASES
divide the inheritance per capita; should they
be of different lines but of equal degree, one- Corpus v. Corpus
half shall go to the paternal and the other half
to the maternal ascendants. In each line the - Teodoro died without forced heirs. His will was probated.
division shall be made per capita. - At his death his nearest relatives were: Luis (his half
brother), Paz (his half sister), children of his half brother
There is no right of representation in the ascending line. Pablo), and Juanita (daughter of his half brother Jose).
- Teodoro was the son of Luis Rafael Yangco and Ramona
Arguelles, the widow of Tomas Corpus.
CASE FOR ARTS. 978-987
- Before her union with Luis Rafael Yangco, Ramona had
begotten five children with Tomas Corpus, two of whom
Sayson v. CA were the Pablo and Jose.
- The project of partition was opposed by the estate of Luis
whose counsel contended that intestacy should be
SUBSECTION 3. - Illegitimate Children declared because the will does not contain an institution of
heir.
Art. 988. In the absence of legitimate descendants - The probate court however approved the project of
partition.
or ascendants, the illegitimate children shall - It appears that Teodoro was an acknowledged natural child
succeed to the entire estate of the deceased. and not a legitimate child was the statement in the will of
his father, Luis Rafael Yangco, dated June 14, 1907, that
Art. 989. If, together with illegitimate children, Teodoro and his three other children were his
there should survive descendants of another acknowledged natural children.
illegitimate child who is dead, the former shall
WON Juanita is entitled to a share in intestate estate of
succeed in their own right and the latter by Teodoro. (Juanita is a legitimate daughter of Romana and
right of representation. Tomas.)
- NO. Since Teodoro was an acknowledged natural child or
Only difference – an illegitimate child can be represented was illegitimate and since Juanita was the legitimate child
bi either an illegitimate or legitimate child of his. While a of Jose Corpus, himself a legitimate child, we hold that
legitimate child can only be represented by a legitimate appellant Tomas Corpus has no cause of action for the
child of his. recovery of the supposed hereditary share of his mother,
Juanita Corpus, as a legal heir, in Yangco's estate. Juanita
Corpus was not a legal heir of Yangco because there is no
reciprocal succession between legitimate and illegitimate
Art. 990. The hereditary rights granted by the two relatives.
preceding articles to illegitimate children - Corpus concedes that if Teodoro R. Yangco was a natural
shall be transmitted upon their death to their child, he (Tomas Corpus) would have no legal personality
descendants, who shall inherit by right of to intervene in the distribution of Yangco's estate.
- Art. 992 of the NCC provides that "an illegitimate child has
representation from their deceased
no right to inherit ab intestato from the legitimate children
grandparent. and relatives of his father or mother; nor shall such children
or relatives inherit in the same manner from the illegitimate
child."
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- The rule is based on the theory that the illegitimate child is - ART 992 prohibits absolutely a succession ab intestato
disgracefully looked upon by the legitimate family while the between the illegitimate child and the legitimate children
legitimate family is, in turn, hated by the illegitimate child. and relatives of the father or mother (who must be a
legitimate child). (However note that descendants, whether
legitimate or illegitimate, can inherit by right of
Leonardo v. CA representation if the person to be represented is an
illegitimate child.).
- Francisca Reyes died intestate and was survived by her
two daughters and grandson, who is the son of her 3 rd Diaz v. IAC
daughter who predeceased her. Grandson died eventually 182 SCRA 427 (1990)
2 yrs after.
- Leonardo now claims ownership over some properties of - The illegitimate children of Pablo Santero filed a 2nd Motion
Francisca because he was a son of the grandson. for Reconsideration on the decision of the SC holding them
disqualified from inheriting from the estate of Simona
W/N Leonardo may inherit. Jardin. (same facts as above)
- SC held that he cannot because: - Said grandchildren are now invoking Arts 902, 982, 989
- 1. He was an illegitimate child of grandson. He was born and 990 of the New Civil Code to bolster their right to
outside of wedlock and while his father’s first marriage is succeed.
still subsisting.
- 2. An illegitimate child may not inherit by right of Whether or not the illegitimate children of a legitimate child can
representation from the legitimate relatives of his father. inherit by right of representation from the children and relatives
- ART. 992 of such legitimate parent
- No.
- First, Articles 902, 989 and 990 clearly speaks of
Diaz v. IAC successional rights of illegitimate children, which rights
150 SCRA 645 (1987) are transmitted to their descendants upon death. The
descendants (of these illegitimate children) who may
- Simona Jardin has a niece Felisa Jardin from her legitimate inherit by virtue of the right of representation may be
sister Juliana Jardin. At the same time, Simona also had a legitimate or illegitimate.
legitimate son, Pablo santero, who predeceased her. On - Second, although Art 982 provides that "the grandchildren
the other hand, Pablo Santero was survived by his 6 and other descendants shall inherit by right of
acknowledged natural children. representation", the same is limited by Art 992 to the end
- Simona Jardin died intestate with only her niece Felisa as that an illegitimate child has no right to inherit ab intestato
the sole surviving heir. During the intestate proceedings of from the legitimate children and relatives of his father or
the estate of Simona, the illegitimate children of Pablo mother (who must be legitimate children themselves).
Santero intervened and contended that as the illegitimate - Third, it is true that while the NCC granted successional
children of the deceased Simona they have the right to rights to illegitimate children, those articles must however
succeed by representation. be read in conjunction with Art 992, which prohibits the right
- The grandchildren premised their rights to succeed under of representation from being exercised where the person to
Art 990 of the NCC, which grants the right of representation be represented is a legitimate child. The determining factor
to descendants whether legitimate or illegitimate. Hence, by therefore is the legitimacy or illegitimacy of the person to be
said proviso, the grandchildren has the right to represent "represented." It must be emphasized that illegitimate
their deceased father in the estate of their grandmother. children have only those rights expressly garnted to them
by law.
Who between Felisa Jardin and the Illegitimate grandchildren - Fourth, the term "relatives", in accordance with the rules of
of Simona are to be considered the legal heirs of Simona statutory construction, must be understood to have a
Jardin. general and inclusive scope inasmuch as the term is a
- Felisa Jardin is the sole legal heir of the decedent. general one. In fact, if the law wants to distinguish it
- The SC held that the grandchildren's reliance in Art 990 is expressly says so by adding qualifiers such as the word
misplaced and that the applicable law is Art 992. Art 990 is "collateral".
not applicable because Pablo Santero is a legitimate child - From the aforementioned, SC affirmed its earlier decision
of Simona while the oppositors are the former's illegitimate that the illegitimate grandchildren are barred from inheriting
children. (Art 990 applies to the right of the descendants of ab intestato from Simona's estate..
an illegitimate child to inherit by representation.) - ART 992 prohibits absolutely a succession ab intestato
- Art 992 provides a barrier or iron curtain in that it prohibits between the illegitimate child and the legitimate children
absolutely a succession ab intestato between the and relatives of the father or mother (who must be a
illegitimate child and the legitimate children and relatives of legitimate child). (However note that descendants, whether
of the father or mother of said legitimate child. Between the legitimate or illegitimate, can inherit by right of
legitimate and illegitimate family there is presumed to be an representation if the person to be represented is an
intervening antagonism and incompatibility. illegitimate child.)
- It is clear therefore from Art 992 of the NCC that the phrase
"legitimate children and relatives of his father and mother"
includes Simona Jardin. Hence, the illegitimate
grandchilren are barred from asserting their right to
succeed from Simona, who is a legitimate relative of their
father.
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Prescriptive period for the claim is FIVE YEARS from the Art. 1006. Should brother and sisters of the full
delivery of the property to the state or political blood survive together with brothers and
subdivision concerned. sisters of the half blood, the former shall be
Who may make the claim – any person entitled by entitled to a share double that of the latter.
succession to the estate, including any heir of any kind of
succession, legitime, testamentary or intestate.
Art. 1007. In case brothers and sisters of the half
blood, some on the father's and some on the
THE PROBLEM OF PARTIAL INTESTACY mother's side, are the only survivors, all shall
The combinations laid down in Articles 978-1014 cover inherit in equal shares without distinction as
only cases of TOTAL intestacy. There is no provision to to the origin of the property.
govern cases of partial intestacy when the decedent has
left a will disposing of part, but not all, of the disposable Art. 1008. Children of brothers and sisters of the
portion. half blood shall succeed per capita or per
How then should the estate be divided if the decedent stirpes, in accordance with the rules laid
died with a will but the will does not dispose of the entire
down for the brothers and sisters of the full
free or disposable portion? The problem is solved by
inference, bearing in mind the law’s intent, thus: blood.
1) Trace where the free portion went in total
intestacy Art. 1009. Should there be neither brothers nor
2) Since part of that free portion was disposed of sisters nor children of brothers or sisters, the
by will, the testamentary provision should be other collateral relatives shall succeed to the
carried out, and what is left of the free portion estate.
should then be given to the intended The latter shall succeed without
beneficiary in intestacy. distinction of lines or preference among them
by reason of relationship by the whole blood.
EXAMPLE
X died, leaving as his survivors his legitimate
parents A and B and his wife Y, without any children. Art. 1010. The right to inherit ab intestato shall
He left a will giving 1/8 of his entire estate to Caritas not extend beyond the fifth degree of
Manila. His net estate is worth P600,000. relationship in the collateral line.
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Art. 1024. Persons not incapacitated by law may Representation NOT an exception to Requirement
succeed by will or ab intestato. The requirement that the successor should be alive
The provisions relating to incapacity by when the decedent dies is absolute. There is no
will are equally applicable to intestate exception to this rule, the provisions of this article
succession. notwithstanding.
For representation to occur, the representation must
The general rule is in favor of capacity to succeed, as at least already be conceived when the decedent
long as the successor has juridical personality. dies, because of the provisions of Articles 971 and
Incapacity must be based on some legal ground and 973.
must be shown. Example – X has 2 sons A and B. B was disinherited
The second paragraph is inaccurate. Some grounds for by X. X died in 1985. In 1988 B begot a child. B’s
incapacity to succeed by will have no application to child cannot represent B in the succession to X.
compulsory or intestate succession.
The articles laying down the cause of incapacity to
succeed are Articles 1027, 2028 and 1032. Art. 1026. A testamentary disposition may be
A. Article 1027 pars. 1-5 – applicable only to made to the State, provinces, municipal
testamentary succession corporations, private corporations,
B. Article 1027 par6 – applicable to ALL kinds of organizations, or associations for religious,
succession scientific, cultural, educational, or charitable
C. Article 1028 – applicable only to testamentary purposes.
succession All other corporations or entities may
D. Article 1032 – applicable to ALL kinds of
succeed under a will, unless there is a
succession
provision to the contrary in their charter or
the laws of their creation, and always subject
Art. 1025. In order to be capacitated to inherit, the to the same.
heir, devisee or legatee must be living at the
moment the succession opens, except in REQUIREMENT FOR CAPACITY OF JURIDICAL
case of representation, when it is proper. PERSONS TO SUCCEED
It must already EXIST as a juridical person when the
A child already conceived at the time of
decedent dies.
the death of the decedent is capable of Organizations or associations which do not possess
succeeding provided it be born later under juridical personality cannot succeed, because
the conditions prescribed in article 41. legally, they would not exist. The enumeration of
juridical persons is found in Art 44:
REQUIREMENT FOR CAPACITY TO SUCCEED OF Art. 44. The following are juridical persons:
NATURAL PERSONS (1) The State and its political subdivisions;
(2) Other corporations, institutions and entities for public interest
A. General rule – must be LIVING when or purpose, created by law; their personality begins as soon
succession opens as they have been constituted according to law;
1. When succession opens – the decedent’s (3) Corporations, partnerships and associations for private
death under Art777 interest or purpose to which the law grants a juridical
2. Meaning of “living” – it is enough that the personality, separate and distinct from that of each
heir, devisee or legatee be already shareholder, partner or member.
conceived when the decedent dies,
provided it be born later, in accordance with For institutions subject to suspensive conditions or
Articles 40 and 41. Inheriting is favorable to terms, the rules outlined in the previous article apply.
the child.
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an exception: i.e. if there are 3 other studies for the priesthood, or having been ordained a priest,
competent witnesses. That exception he was excommunicated, and who would be obligated to
should be read into this paragraph. say annually twenty masses with prayers for the repose of
the souls of the testator and his parents.
5. Physician, surgeon, nurse, health officer or - During the testate proceedings, the CFI approved the
druggist project of partition and directed the administratrix to deliver
o Scope of Prohibition – the person must to the devisees their respective shares. Inasmuch as no
nearest male relative of the testator claimed the devise and
have taken care of the testator during the
as the administratrix and the legal heirs believed that the
latter’s final illness. “Taking Care” means
parish priest of Victoria had no right to administer the
medical attendance with some regularity or ricelands, the same were not delivered to him. The latter,
continuity that the possibility of duress or however, petitioned for delivery of the ricelands to the
influence exists. church.
o However, the pharmacist who only happens - The lower court, after first declaring the bequest
to fill a prescription does not fall under the inoperative, later reconsidered its findings in an order, on
interdiction. the ground that the testator had a grandnephew (born after
the testator's death), who was a seminarian, and directed
6. Individuals, associations and corporations not the administrator of the estate to deliver the ricelands to the
permitted by law parish priest of Victoria as trustee.
Bewildering variations in the rules – Did the testator contemplate only his nearest male relative at
Why do some paragraphs [pars 2 and 4] disqualify the time of his death? Or did he have in mind any of his
relatives but another [par5] does not? nearest male relatives at anytime after his death?
Why is the exception in par3 not applied to - The bequest refers to the testator's nearest male relative
living at the time of his death and not to any indefinite time
paragraphs 1 and 5?
thereafter. "In order to be capacitated to inherit, the heir,
The reason is that the article is derived from various
devisee or legatee must be living at the moment the
sources – from the Old Code, the Code of Civil succession opens, except in case of representation, when it
Procedure and the ideas of the Code Commission. is proper"
- The said testamentary provisions should be sensibly or
reasonably construed. To construe them as referring to the
Art. 1028. The prohibitions mentioned in article testator's nearest male relative at anytime after his death
739, concerning donations inter vivos shall would render the provisions difficult to apply and create
apply to testamentary provisions. uncertainty as to the disposition of his estate. That could
not have been his intention.
- In 1935, when the testator died, his nearest legal heirs were
The Disqualification laid down by this article applies only
his three sisters or second-degree relatives, Mrs. Escobar,
to TESTAMENTARY SUCCESSION
Mrs. Manaloto and Mrs. Quiambao. Obviously, when the
By the provisions of this article, those are disqualified testator specified his nearest male relative, he must have
from receiving donations under Art739 are likewise had in mind his nephew or a son of his sister, who would be
disqualified from receiving testamentary dispositions from his third-degree relative, or possibly a grandnephew. But
the parties specified in that article. since he could not prognosticate the exact date of his death
Art. 739. The following donations shall be void: or state with certitude what category of nearest male
(1) Those made between persons who were guilty of adultery or relative would be living at the time of his death, he could not
concubinage at the time of the donation; specify that his nearest male relative would be his nephew
(2) Those made between persons found guilty of the same criminal or grandnephews (the sons of his nephew or niece) and so
offense, in consideration thereof; he had to use the term "nearest male relative".
(3) Those made to a public officer or his wife, descedants and - Inasmuch as the testator was not survived by any nephew
ascendants, by reason of his office. who became a priest, the unavoidable conclusion is that the
In the case referred to in No. 1, the action for declaration of bequest in question was ineffectual or inoperative.
nullity may be brought by the spouse of the donor or donee; and the Therefore, the administration of the ricelands by the parish
guilt of the donor and donee may be proved by preponderance of priest of Victoria, as envisaged in the will, was likewise
evidence in the same action. inoperative. It should be understood that the parish priest of
Victoria could become a trustee only when the testator's
CASES FOR ARTICLES 1015-1028 nephew living at the time of his death, who desired to
become a priest, had not yet entered the seminary or,
Parish Priest v. Rigor having been ordained a priest, he was excommunicated.
Those two contingencies did not arise, and could not have
- Father Rigor, the parish priest of Pulilan, Bulacan, died arisen, in this case because no nephew of the testator
leaving a will which was probated by the CFI. Named as manifested any intention to enter the seminary or ever
devisees in the will were the testator's nearest relatives, became a priest.
namely, his three sisters: Florencia Rigor-Escobar, Belina - This case is covered by article 956, which provides that if
Rigor-Manaloto and Nestora Rigor-Quiambao. The testator "the bequest for any reason should be inoperative, it shall
gave a devise to his cousin, Fortunato Gamalinda. be merged into the estate, except in cases of substitution
- It may be deduced that the testator intended to devise the and those in which the right of accretion exists"
44 ha. Riceland owned by him to his nearest male relative - This case is also covered by article 960(2), which provides
who would become a priest, who was forbidden to sell the that legal succession takes place when the will "does not
ricelands, who would lose the devise if he discontinued his dispose of all that belongs to the testator."
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Nepomuceno v. CA REQUISITES
A. Disposition for prayers and pious works for the
- Martin Jugo, in his will, appointed Sofia Nepomuceno as his benefit of the testator’s soul
sole and only executor of his estate. B. No specification of application of the disposition
- The will state that Jugo was legally married to Rufina
Gomez, by who he has 2 children and that since 1962, they Apportionment of the Disposition or its Proceeds
have been estranged and Martin had been living with Sofia A. One-half [1/2] to the Church or denomination to
as husband and wife. which the testator belonged
- Martin devised to his forced heirs (Rufina and their 2 B. One-half [1/2] to the State, to be applied as
children) his entire estate, and the free portion thereof to provided for under Art1013
Sofia.
- Sofia filed a petition for the probate of the last will of Martin.
- Rufina and her children opposed.
- CFI denied probate on the ground that Martin admitted in Art. 1030. Testamentary provisions in favor of the
his will that he had been unlawfully cohabiting with Sofia. poor in general, without designation of
- The CA reversed and admitted the will to probate but particular persons or of any community, shall
declared that the devise in favor of Sofia is void. be deemed limited to the poor living in the
- Sofia contends that the validity of the testamentary domicile of the testator at the time of his
provision in her favor should be assailed in another
proceeding.
death, unless it should clearly appear that his
intention was otherwise.
Whether the probate court could validly pass upon the intrinsic The designation of the persons who are to
validity of the testamentary provision in favor of Sofia. be considered as poor and the distribution of
- YES. The rule that only the extrinsic validity of the will is the property shall be made by the person
looked upon in probate proceedings is not absolute. For appointed by the testator for the purpose; in
practical considerations, the probate court is not powerless
to pass upon certain provisions of the will even before it is
default of such person, by the executor, and
probated. should there be no executor, by the justice of
the peace, the mayor, and the municipal
Whether Sofia can validly claim the devise made in her favor. treasurer, who shall decide by a majority of
- NO. The prohibition in Art. 739 of the NCC is against the votes all questions that may arise. In all these
making of a donation between person who are living in
cases, the approval of the Court of First
adultery or concubinage. It is the donation which becomes
void. The given cannot give even assuming that the Instance shall be necessary.
recipient may receive. The preceding paragraph shall apply
- In this case, the wordings of the Will invalidate the legacy when the testator has disposed of his
because the testator admitted he was disposing the property in favor of the poor of a definite
properties to a person with whom he had been living in locality.
concubinage.
- Art. 1028 of the NCC: The prohibitions mentioned in Art.
739, concerning donations inter vivos shall apply to The named beneficiaries here are the poor, either of a
testamentary provisions. definite locality [par3] or of no designated locality [par1].
In the latter case, the beneficiaries shall be the poor of
the testator’s domicile, unless excluded by the testator in
his will.
Who are to determine the individual beneficiaries within
the class designated by the testator?
A. The person authorized by the testator or in his
default,
B. The executor, or in his default,
C. The administrator.
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8. Person who falsifies or forges a supposed will Balane says this seems unacceptable
of the decedent because that would make the rules on
unworthiness [which is by operation of law
and is only the implied will of the offended
EFFECT OF UNWORTHINESS
party] prevail over those on disinheritance
Unworthiness gives rise to total disqualification, i.e.
[which is his express will]
the unworthy heir is incapacitated to succeed from
the offended party by ANY FORM OF
B. THUS, the most acceptable reconciliation seems to
SUCCESSION.
be the following:
Thus, unworthiness and disinheritance have
1. If offended party DOES NOT MAKE A WILL
identical effects. Unworthiness is disinheritance
subsequent to the occurrence of the common
imposed by law.
cause – apply article 1033, unworthiness sets in
That unworthiness deprives the unworthy heir even
ipso facto and written condonation is necessary
of the legitime is clear from Article 1035.
to restore capacity.
2. If offended party MAKES A WILL subsequent to
the occurrence of the common cause –
Art. 1033. The cause of unworthiness shall be a. If he knew of the cause
without effect if the testator had knowledge i. If he disinherits – art922, disinheritance
thereof at the time he made the will, or if, is ineffective.
having known of them subsequently, he ii. If he institutes or pardons the offender
should condone them in writing. – offender restored to capacity.
iii. If will is silent – this is disputed. But the
Restoration to Capacity – the unworthiness is set aside better opinion is that the unworthiness
and the unworthy heir restored to capacity in 2 ways: stays.
1. A written condonation, or b. If he did not know of the cause –
2. The execution by the offended party of a will unworthiness stays
with knowledge of the cause of unworthiness.
Question – regarding the second mode, is it enough that Art. 1034. In order to judge the capacity of the
the offended party execute a will with knowledge of the heir, devisee or legatee, his qualification at
existence of the cause of unworthiness? the time of the death of the decedent shall be
o Balane says that the better opinion is that it is the criterion.
NOT enough, the will must either institute the
In cases falling under Nos. 2, 3, or 5 of
unworthy heir or restore him to capacity.
Article 1032, it shall be necessary to wait until
Common Grounds for Unworthiness and final judgment is rendered, and in the case
Disinheritance: Conflicting Modes of Lifting falling under No. 4, the expiration of the
Disqualification [Articles 1033 and 922] month allowed for the report.
A. Most of the grounds for unworthiness are also If the institution, devise or legacy should
grounds for disinheritance under Art1032. be conditional, the time of the compliance
There is no problem if the offended party with the condition shall also be considered.
does not choose to disinherit the offending
heir, because then only the rules of When Capacity is to be Determined
unworthiness will operate. A. General Rule – the time of the decedent’s death
Should the offended party, however, elect to o Because that is when successional rights
disinherit the offender, the 2 set of rules on vest.
disinheritance and unworthiness would
overlap. B. If institution is subject to suspensive condition –
The problem then arises: HOW IS THE 1. Time of the decedent’s death AND
DISQUALIFIED HEIR RESTORED TO 2. Time of the happening of the condition
CAPACITY? C. If final judgment is a requisite of unworthiness – at
Under the rules on disinheritance, a the time of final judgment.
subsequent reconciliation is enough (Art922);
under those on unworthiness, either a written
pardon or a subsequent will is required.
Supposing that there is a reconciliation but
nothing in writing, will it be correct to conclude
that the heir is restored to capacity under the
rule on disinheritance but stays disqualified
under the rule on unworthiness?
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Art. 1035. If the person excluded from the Note that in cases of valid alienations by the disqualified
inheritance by reason of incapacity should be heir, the rightful heirs are not without a remedy: they may
a child or descendant of the decedent and go after the disqualified heir for damages.
should have children or descendants, the
latter shall acquire his right to the legitime.
The person so excluded shall not enjoy Art. 1037. The unworthy heir who is excluded
the usufruct and administration of the from the succession has a right to demand
property thus inherited by his children. indemnity or any expenses incurred in the
preservation of the hereditary property, and
Representation in Unworthiness to enforce such credits as he may have
Unworthiness is one of the 3 occasions for against the estate.
representation to operate.
The right of reimbursement granted by this article to the
Extent of Representation
excluded heir is irrespective of his bad faith because the
Representation in unworthiness [as also in
expenses referred to in this article are necessary
predecease and disinheritance] extends not only to
expenses which have to be reimbursed even to a
the legitime but also to whatever portion in intestate
possessor in bad faith [under Articles 443 and 546 par1]
succession the person represented may have been
entitled to.
The first paragraph of the article should not be taken
to imply that representation is confined to the Art. 1038. Any person incapable of succession,
legitime. who, disregarding the prohibition stated in
the preceding articles, entered into the
Representation in the Collateral Line
possession of the hereditary property, shall
If the unworthy heir is a brother or sister, his children
[nephews and nieces of the decedent] will represent be obliged to return it together it its
under art972 par2. accessions.
He shall be liable for all the fruits and
Second Paragraph – Articles 225-226 of the Family Code rents he may have received, or could have
should be read together with the second paragraph of received through the exercise of due
this article –
A. As to usufruct – the prohibition in this provision
diligence.
has become unnecessary because of Art226 par2
of the Family Code. The disqualified heir, referred to in this article, who took
B. As to administration – the disqualification remains, possession of the hereditary property, is a possessor in
and this right shall be exercised either by a bad faith, because he took possession “disregarding the
judicially appointed guardian or those vested by provision stated in the preceding articles.”
law with substitute parental authority under Art216 Hence, the law applies to him the rules on possession in
of the Family Code. bad faith:
1. The obligation to return, with accessions
2. Liability for fruits which were received and could
have been received.
Art. 1036. Alienations of hereditary property, and
These are the same rules laid down in Art549.
acts of administration performed by the
Period for action to recover – Under Art 1040, 5 years.
excluded heir, before the judicial order of
exclusion, are valid as to the third persons
who acted in good faith; but the co-heirs shall Art. 1039. Capacity to succeed is governed by the
have a right to recover damages from the law of the nation of the decedent.
disqualified heir.
National law of decedent governs capacity – note that it
Good Faith of Transferee as Determining Factor of is the national law of the DECENDENT and not that of
Validity the heir that governs the capacity to succeed.
The validity of the alienation is determined by the This is the same principle as Art16 par2.
good faith or bad faith of the transferee, not of the
transferor [the excluded heir] Art. 16. Real property as well as personal property is subject to the
For the transferee to be in good faith, he must have law of the country where it is stipulated.
acquired the thing for value and without knowledge However, intestate and testamentary successions, both with respect
of the defect of the transferor’s title. to the order of succession and to the amount of successional rights
Thus, a donee cannot claim the benefit of this and to the intrinsic validity of testamentary provisions, shall be
provision, since he did not acquire for value. regulated by the national law of the person whose succession is under
consideration, whatever may be the nature of the property and
regardless of the country wherein said property may be found.
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donation and therefore must conform to the transactions or dispositions of their debtors which will
prescribed form of donations under Arts 748-749. prejudice or defraud them.
The same principle is expressed in Art1177 and Art1313
If the gratuitous “renunciation” is in favor of of the Civil Code.
ALL the heirs but in proportions Art. 1177. The creditors, after having pursued the property in
DIFFERENT from those in which they possession of the debtor to satisfy their claims, may exercise all the
would receive by accretion, it is still a rights and bring all the actions of the latter for the same purpose,
conveyance and must be treated as a tacit save those which are inherent in his person; they may also impugn
acceptance. the acts which the debtor may have done to defraud them.
A fortiori, if the renunciation in favor of one Art. 1313. Creditors are protected in cases of contracts intended to
or some of the co-heirs is for an onerous defraud them.
consideration, there is an acceptance.
The right of the creditor to accept the inheritance in the
C. Par3 – Onerous renunciation in favor of all the co- name of the debtor extends only to the amount or value
heirs indiscriminately; this is not in fact a necessary to satisfy the credit. Any amount in excess of
renunciation but a sale f his portion and therefore that may be validly renounced by the debtor-heir.
constitutes a tacit acceptance.
Gratuitous renunciation in favor of the co-
heirs indiscriminately – this is a true Art. 1053. If the heir should die without having
renunciation and cannot be treated as a accepted or repudiated the inheritance his
tacit acceptance. Indiscriminate right shall be transmitted to his heirs.
renunciation means a renouncement,
gratuitously made, in favor of all the co-
This rule is a consequence of the principle that the rieght
heirs who would get the renounced portion
of succession vests at the moment of death. Therefore,
by virtue of accretion.
the right of the heir who dies before accepting or
The same rule applies even if the part
renouncing is already vested and is transmitted to the
renounced in this manner is the legitime,
heir’s heirs.
notwithstanding that there is no accretion in
The right to the inheritance itself forms part of the
the legitime, as long as the renunciation is
inheritance of the heir and therefore, the heir of the heir
indiscriminate.
can exercise the right granted by this article only if he
[the heir’s heir] accepts his own predecessor’s
inheritance. If he renounces, obviously he cannot
Art. 1051. The repudiation of an inheritance shall exercise this right.
be made in a public or authentic instrument,
or by petition presented to the court having
jurisdiction over the testamentary or intestate Art. 1054. Should there be several heirs called to
proceedings. the inheritance, some of them may accept and
the others may repudiate it.
FORMS OF RENUNCIATION
A. Public or Authentic [genuine] Instrument If there are several heirs, their right to accept or right
B. Petition filed in the Settlement Proceedings corresponds to the aliquot share to which they are
entitled.
Form of renunciation stricter – the law has stricter Thus, if X dies and Y, his heir, himself dies before
requisites for renunciation, since it is not beneficial to the accepting or renouncing the inheritance, leaving A, B and
heir. C as his own heirs – A, B and C each has the right to
accept or renounce his corresponding 1/3 interest in
whatever Y was entitled to inherit from X.
Art. 1052. If the heir repudiates the inheritance to Question – should one or more of the heirs renounce, to
the prejudice of his own creditors, the latter whom will the repudiated portion go? To the ones who
may petition the court to authorize them to accept, by accretion? Or to the intestate heirs of the
accept it in the name of the heir. decedent whose inheritance the predecessor of the heirs
The acceptance shall benefit the creditors was unable to accept or renounce?
only to an extent sufficient to cover the
amount of their credits. The excess, should
there be any, shall in no case pertain to the
renouncer, but shall be adjudicated to the
persons to whom, in accordance with the
rules established in this Code, it may belong.
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Art. 1055. If a person, who is called to the same Art. 1056. The acceptance or repudiation of an
inheritance as an heir by will and ab intestato, inheritance, once made, is irrevocable, and
repudiates the inheritance in his capacity as a cannot be impugned, except when it was
testamentary heir, he is understood to have made through any of the causes that vitiate
repudiated it in both capacities. consent, or when an unknown will appears.
Should he repudiate it as an intestate heir,
without knowledge of his being a EXCEPTIONS TO THE RULE OF FINALITY OF
testamentary heir, he may still accept it in the ACCEPTANCE OR RENUNCIATION
latter capacity. A. Vitiated Consent – the factors are:
1. Violence
2. Intimidation
This article governs the situation when a person is BOTH
3. Undue Influence
a testamentary heir [or legatee or devisee and an
4. Mistake
intestate heir], with respect to the same inheritance.
5. Fraud
B. Appearance of an unknown will – this applies if
RULES the newly-discovered will is subsequent to any will
A. If he renounces as testamentary heir [or legatee which may have formed the basis for the
or devisee] – he is deemed to have renounced as acceptance or renouncement. The new will
intestate heir as well. [assuming it is valid and admitted to probate]
B. If he renounces as intestate heir without reopens the whole affair and will call for a new
knowledge of his being a testamentary heir [or acceptance or renunciation.
legatee or devisee] – he is NOT deemed to have
renounced as testamentary heir and may
therefore accept or renounce separately in the
latter capacity. Art. 1057. Within thirty days after the court has
issued an order for the distribution of the
Rationale – the testamentary disposition is the express estate in accordance with the Rules of Court,
will of the testator, whereas intestacy is only his implied the heirs, devisees and legatees shall signify
will. One who renounces the express will is deemed to to the court having jurisdiction whether they
have renounced the implied also, but not the other way accept or repudiate the inheritance.
around. If they do not do so within that time, they
Question – supposing the heir renounces as intestate are deemed to have accepted the inheritance.
heir with knowledge of his being testamentary heir, may
he accept in the latter capacity? Balane says YES, in
This is IMPLIED ACCEPTANCE – the failure to signify
light of the rationale of the rule. the acceptance or renunciation within the 30-day period
specified by this article
NON-APPLICABILITY OF RULE TO LEGITIME Qui tacet consentire videtur – silence means yes.
In view of the rationale of the rule, should the heir be
simultaneously a compulsory heir and a
testamentary heir, he can accept either or both.
The legitime passes not because of any implied will CASES FOR ARTICLES 995-1002
or wish of the decedent but by strict operation of law,
irrespective of the decedent’s wishes. Thus, the Avelino v. CA
term ab intestate in this article refers solely to
intestate succession. - The petitioner Maria Socorro is a daughter of Antonio
Avelino, Sr. and Angelina Avelino.
To the same effect is the rule laid down in Art955
- The private respondents are Angelina, Maria’s siblings, and
par2, regarding a person who is simultaneously a Sharon, the 2nd wife of Antonio, Sr.
compulsory heir and a legatee or devisee. - Maria filed a petition with the RTC-QC for issuance of
letters of administration of the estate of Antonio, Sr., who
died intestate. She asked that she be appointed
administrator of the estate.
- The private respondents filed an opposition by filing a
motion to convert the petition for issuance of letters of
administration to an action for judicial partition. Maria duly
opposed.
- RTC granted the motion of the private respondents. A
subsequent MR by Maria was denied.
- Hence, this petition alleging that the judge committed grave
abuse in granting the motion.
WON the RTC Judge was in error in granting the motion and
converting the petition for issuance of letters of administration
to an action for judicial partition.
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Art. 1064. When the grandchildren, who survive RULES ON DONATIONS TO THE SPOUSE
with their uncles, aunts, or cousins, inherit OF THE CHILD
from their grandparents in representation of A. Donations made by a person to his son-in-law or
daughter-in-law are SEPARATE property of the
their father or mother, they shall bring to
donee and should not be imputed to the legitime
collation all that their parents, if alive, would of the donor’s child [the donee’s spouse]. The
have been obliged to bring, even though such donation is one made to a stranger.
grandchildren have not inherited the property. B. If the donation is made to the spouse JOINTLY,
They shall also bring to collation all that one-half belongs to the donor’s child and should
they may have received from the decedent be treated in accordance with Art1062 and the
during his lifetime, unless the testator has other half is the property of the donor’s son or
provided otherwise, in which case his wishes daughter-in-law and should be treated as a
must be respected, if the legitime of the co- donation to a stranger.
o This presumption of equality of aliquot
heirs is not prejudiced.
shares [as to the ½ division between
spouses] will yield to a different designation
Collation in the sense of IMPUTATION by the donor.
This article applies to 2 instances:
1. When the grandchildren of the decedent These rules are consistent with the Family Code –
inheriting by representation concurrently with A. In ACP – Article 92 par. 1
children of the decedent [uncles and aunts of Art. 92. The following shall be excluded from the community
the grandchildren] who are inheriting in their property:
own right, or (1) Property acquired during the marriage by gratuitous title
2. The grandchildren inherit by representation with by either spouse, and the fruits as well as the income
other grandchildren [cousins of the thereof, if any, unless it is expressly provided by the
grandchildren]. donor, testator or grantor that they shall form part of the
community property;
What the Grandchildren have to Collate or Impute to the
Legitime B. In CPG – Art109 (2) and Article 113.
A. Whatever the parent whom they are representing Art. 109. The following shall be the exclusive property of each
would have been obliged to collate; and spouse:
B. Whatever they themselves have received from the (2) That which each acquires during the marriage by
grandparent by gratuitous title, subject to the gratuitous title;
same rules and exceptions in Art1062.
Art. 113. Property donated or left by will to the spouses, jointly
and with designation of determinate shares, shall pertain to
the donee-spouses as his or her own exclusive property, and
Art. 1065. Parents are not obliged to bring to in the absence of designation, share and share alike, without
collation in the inheritance of their prejudice to the right of accretion when proper.
ascendants any property which may have
been donated by the latter to their children.
Art. 1067. Expenses for support, education,
Collation in the sense of IMPUTATION. medical attendance, even in extraordinary
A person should not collate what his parent gave to his illness, apprenticeship, ordinary equipment,
child since he is not the recipient of the conveyance. or customary gifts are not subject to
Against what part of the estate the conveyance is collation.
imputable – the donation to the grandchild should be
imputed to the FREE PORTION, since the donation is to Collation in the sense of COMPUTATION [add].
a stranger. The expenses mentioned should not even be included in
the computation of the decedent’s estate. This is in effect
a qualification of or an exception to the rule in Art1061.
Art. 1066. Neither shall donations to the spouse The reason is that it would be extremely impractical or
of the child be brought to collation; but if they impossible to make an accounting of all these items.
have been given by the parent to the spouses Justice Hofilena says these are not really donations but
jointly, the child shall be obliged to bring to expenses. According to Tolentino, educational expenses
collation one-half of the thing donated. in the elementary and high school levels are considered
as expenses and not subject to collation, but higher
levels of education should be collated.
Collation in the sense of IMPUTATION
“Support” in this article has a restrictive meaning, it
DOES NOT include expenses for the recipient’s
professional, vocational or other career because these
are items governed by Art1068.
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Art. 548. Expenses for pure luxury or mere pleasure respondents, denied that there was any partitioning of the
shall not be refunded to the possessor in good estate of Flavio during his lifetime.
faith; but he may remove the ornaments with - In fact, Lot 871 is still in the name of Flavio and that Lot 973
which he has embellished the principal thing if it has already been sold to Florentino by the decedent for a
suffers no injury thereby, and if his successor in valuable consideration.
the possession does not prefer to refund the - The RTC ruled that Flavio partitioned his properties during
amount expended. his lifetime and that there is an intention to convey Lot 871
to Alberta.
2. If the thing has to be returned only in PART - However, there is a valid title over Lot 943 and the
because the donation is only partially inofficious complaint in respect thereof should be dismissed.
a. Necessary and useful expenses – the
reimbursement is also partial, in Whether or not a Partition inter vivos is valid
proportion to the value to be returned. - The SC is convinced by the documentary and testimonial
b. Ornamental expenses – the same rule as evidence thus presented that indeed a partition over the
estate of Flavio Zaragoza was executed during the latter's
in total return, unless the property is
lifetime. It is in this partition that Alberta anchors her claim
physically divided and the ornament
for the disputed lots as in fact, it was admitted by the
happens to be located in the portion respondents that Lots 943 and 871 were supposedly the
assigned to the donee, in which case he inheritance shares of youngest sibling.
will have all the rights of ownership. - As to the validity of this partition, the SC held a partition
inter vivos is valid although the same should not encroach
Confusion in terminology – the situation treated in this upon the legitimes.
article is really a case of reduction of inofficious - As provided for in Art 1061, collation must be resorted to in
donations and the rules set forth in this article really order to determine whether what has been received from
belong in the provisions on inofficious donations in the decedent, during the lifetime of the latter by way of
Articles 910, 910 and 911. The confusion would have donation or any gratuitous title, has impaired the legitime.
been avoided if the Code had not insisted on using the - Unfortunately, in this case, collation can not be done as not
term collation so variedly. all the indispensable parties are impleaded in the case.
Hence, The SC held that the petition must therefore be
dismissed without prejudice to the institution of a new
proceeding where all the indispensable parties are present
Art. 1077. Should any question arise among the for the rightful determination of their respective legitimes.
co-heirs upon the obligation to bring to
collation or as to the things which are subject Whether or not the validity of the Deed of Sale over Lot 943
to collation, the distribution of the estate shall can be resolved in an action for delivery of share
- The validity of the Deed of Sale could not be collaterally
not be interrupted for this reason, provided attacked in this petition pursuant to the provisions of PD
adequate security is given. 1529.
- The SC held that the certificate of title, in the absence of
The division and distribution of the estate can be made fraud, is the evidence of title real interest of the owner. Once
partially, should there be controversy as to the inclusion registered, the same could not be modified or altered except
of certain items in the computation of the estate’s value in limited circumstances, except in some proceeding
or the imputation of the heirs’ shares. allowed by law.
The distribution can proceed on the items that are not - Art 1061
controverted. - Collation must be resorted to in order to determine whether
what has been received from the decedent, during the
lifetime of the latter by way of donation or any gratuitous
title, has impaired the legitime.
CASES FOR ARTICLES 1058-1077
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Mandatary cannot be a co-heir – the reason for this EXCEPTIONS – despite this imposed indivision,
prohibition is to ensure fairness and impartiality. partition may be demanded:
1. When any of the causes for dissolution of a
partnership occurs, under Arts. 1830-1831:
Art. 1082. Every act which is intended to put an Art. 1830. Dissolution is caused:
end to indivision among co-heirs and (1) Without violation of the agreement between the
legatees or devisees is deemed to be a partners:
partition, although it should purport to be a (a) By the termination of the definite term or particular
sale, and exchange, a compromise, or any undertaking specified in the agreement;
(b) By the express will of any partner, who must act in
other transaction.
good faith, when no definite term or particular is
specified;
CONSTRUCTIVE PARTITION (c) By the express will of all the partners who have not
Partition may be actual or constructive, in relation to assigned their interests or suffered them to be
Article 1079. This article refers to cases of charged for their separate debts, either before or
constructive partition. after the termination of any specified term or
particular undertaking;
CASE (d) By the expulsion of any partner from the business
Tuason v. Tuason & Gregorio Araneta Inc. bona fide in accordance with such a power conferred
by the agreement between the partners;
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2. When the Court finds compelling reasons for Art. 1086. Should a thing be indivisible, or would
partition. be much impaired by its being divided, it may
be adjudicated to one of the heirs, provided
When the co-heirs agree on indivision for a period
not exceeding 10years, renewable for like periods. he shall pay the others the excess in cash.
Nevertheless, if any of the heirs should
demand that the thing be sold at public
Art. 1084. Voluntary heirs upon whom some auction and that strangers be allowed to bid,
condition has been imposed cannot demand this must be done.
a partition until the condition has been
fulfilled; but the other co-heirs may demand it This is another instance of constructive partition: sale of
by giving sufficient security for the rights the thing and division of the proceeds among the heirs.
This will have to be resorted to if the thing is essentially
which the former may have in case the
indivisible or in physical partition will so diminish its value
condition should be complied with, and until that it becomes unserviceable or useless.
it is known that the condition has not been To whom thing may be sold:
fulfilled or can never be complied with, the 1. To a 3rd person, or
partition shall be understood to be 2. If none of the co-heirs object, to any one of
provisional. them who is interested. If more than one are
interested in buying, they may buy it jointly and
Application of Article – Institutions with a Suspensive have the proceeds distributed among the others
Condition to the extent of their respective shares. But the
Rationale co-ownership will continue as to the buyers.
The heir instituted under a suspensive condition
acquires no rights unless and until the condition
happens. Art. 1087. In the partition the co-heirs shall
The other heirs not so instituted, however, should reimburse one another for the income and
not be deprived of their right to demand partition, fruits which each one of them may have
subject to the obligation to protect the inchoate right received from any property of the estate, for
of the conditional heir, by furnishing adequate
any useful and necessary expenses made
security.
upon such property, and for any damage
thereto through malice or neglect.
Art. 1085. In the partition of the estate, equality
MUTUAL ACCOUNTING
shall be observed as far as possible, dividing
Upon partition, the co-heirs shall render a mutual
the property into lots, or assigning to each of accounting of benefits received and expenses, both
the co-heirs things of the same nature, quality necessary and useful, incurred by each of them.
and kind. Thus, any heir who between the decedent’s death
and partition time, received fruits from the estate
EQUALITY AMONG CO-HEIRS shall reimburse his co-heirs their respective shares,
Quantitative – the shares of the co-heirs are not in proportion to the hereditary interest of each.
necessarily equal in value, but are determined by Similarly, any heir who incurred necessary or useful
the law and by will. expenses on the hereditary estate may demand
Qualitative – whatever the aliquot portions be, reimbursement from his co-heirs in the same
however, the law mandates equality in nature, kind proportion.
and quality, so that if A gets a parcel of rice land, B This article lays down the same rule contained in the
should also be given one. Title on Co-ownership under Art500:
Art. 500. Upon partition, there shall be a mutual accounting for
EXCEPTIONS / QUALIFICATIONS to the requirement of benefits received and reimbursements for expenses made.
Qualitative Equality – Likewise, each co-owner shall pay for damages caused by reason
1. If the causante has made the partition himself of his negligence or fraud.
2. If the co-heirs agree otherwise
3. If qualitative equality is impossible or impracticable.
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Requirement of Written Notice This article only provides for the right over the document.
The article gives the co-heirs the right of redemption, The co-heirs however have the right to have the title
which can be exercised within one month from divided into individual titles, a separate one for each of
written notice to them by the vendor. the owners to correspond to the separate portions held
Written notice therefore is required; without it the by them respectively.
period does not commence to run. The SC has, as a
rule, interpreted this requirement of written notice
strictly. SUBSECTION 2. - Effects of Partition
Garcia v. Calaliman – Written notice is
indispensable, actual knowledge of the sale
acquired in some other manners by the Art. 1091. A partition legally made confers upon
redemptioner, notwithstanding. He or she is still each heir the exclusive ownership of the
entitled to written notice to remove all uncertainty as property adjudicated to him.
to the sale, its terms and its validity, and to quiet any
doubt that the alienation is not definitive. The law not The effect of partition is termination of co-ownership.
having provided for any alternative, the method of
notifications remains exclusive, though the Code
does not prescribe any particular form of written Art. 1092. After the partition has been made, the
notice nor any distinctive method for written
co-heirs shall be reciprocally bound to
notification of redemption.
warrant the title to, and the quality of, each
The same rule is laid down in Art1620 which applies property adjudicated.
where the co-ownership covers specific property. While
Article 1088 applies where the co-ownership covers the OBLIGATION OF MUTUAL WARRANTY
mass of the hereditary estate. But the distinction is Partition among co-heirs imposes upon them the
academic and the rule is the same. same mutual obligation of warranties imposed
Art. 1620. A co-owner of a thing may exercise the right of redemption among co-owners in general.
in case the shares of all the other co-owners or of any of them, are According to Art501: “Every co-owner shall, after
sold to a third person. If the price of the alienation is grossly partition, be liable for defects of title and quality of
excessive, the redemptioner shall pay only a reasonable one. the portion assigned to each of the other co-
Should two or more co-owners desire to exercise the right of owners.”
redemption, they may only do so in proportion to the share they may
respectively have in the thing owned in common.
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Amount of Lesion
The minimum extent of lesion for rescission to be
available is ONE-FOURTH or 25%.
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Art. 1102. An heir who has alienated the whole or CASES FOR ARTICLES 1078-1105
a considerable part of the real property
adjudicated to him cannot maintain an action Legasto v. Verzosa
for rescission on the ground of lesion, but he - On May 13, 1925, Sabina Almadin executed a will devising
shall have a right to be indemnified in cash. certain parcels of land belonging to her, to her four nieces,
Maria Verzosa, Oliva Verzosa, Toribia Verzosa, and
Correlated with the preceding article, this article is Ruperta Palma, daughters of her sister Catalina Almadin,
unnecessary since anyway it is the party sued who is designating the parcels to be given to each.
given the option. - On August 8, 1925, Sabina Almadin partitioned her
property among her aforesaid sister and nieces, executing
separate Deeds of Sale in favor of each of her nieces.
- The assignees, Maria Verzosa, Toribia Verzosa, Oliva
Art. 1103. The omission of one or more objects or Verzosa, and Ruperta Palma, took possession of their
securities of the inheritance shall not cause respective parcels thus ceded by Sabina Almadin, and
the rescission of the partition on the ground have been cultivating them as exclusive owners thereof.
of lesion, but the partition shall be completed - Unfortunately, the will of Sabina was not admitted to
by the distribution of the objects or securities probate. A complaint was filed by the administrator seeking
delivery of the parcels of land in the possession of Sabina’s
which have been omitted. nieces.
Incompleteness of the partition is not a ground for As Sabina Almadin's will was disallowed for the reason that it
rescission. The remedy is a supplemental partition. did not contain all the essential requisites provided by law for
its validity, can the aforesaid partition of her estate made by
said testatrix among her nieces be deemed valid?
Art. 1104. A partition made with preterition of any - NO. It is an indispensable condition precedent to a testator
partitioning his estate inter vivos that he have made a valid
of the compulsory heirs shall not be will disposing of said estate among his heirs; and if this will
rescinded, unless it be proved that there was be declared null and void, the partition made by the testator
bad faith or fraud on the part of the other in pursuance of its provisions is likewise null and void, for
persons interested; but the latter shall be where these provisions cease to exist, the partition made in
proportionately obliged to pay to the person conformity therewith also becomes null and void, as the
cessation of the cause implies the cessation of the effect.
omitted the share which belongs to him. - And since Sabina, Almadin's will is null and void for lack of
the legal requisites, consequently, the partition which she
This is NOT preterition under Art854. This is simply an made of her estate among her nieces the defendants-
omission of a compulsory heir in the partition, the appellants herein, during her lifetime is likewise null and
assumption being something is left for him in the form of void.
an undisposed portion of the estate. The omitted heir - ART. 1056. If the testator should make a partition of his
simply gets his rightful share [Non v. CA] property by an act inter vivos, or by will, such partition shall
If the compulsory heir is one in the direct line and is stand in so far as it does not prejudice the legitime of the
totally omitted from the inheritance, Art854 applies. forced heirs.
- A testator may, by an act inter vivos, partition his property,
but he must first make a will with all the formalities provided
for by law. And it could not be otherwise, for without a will
Art. 1105. A partition which includes a person there can be no testator; when the law, therefore, speaks of
believed to be an heir, but who is not, shall be the partition inter vivos made by a testator of his property, it
void only with respect to such person. necessarily refers to that property which he has devised to
his heirs.
This is the reverse of the preceding article. Here an - A person who disposes of his property gratis inter vivos is
outsider is mistakenly included in the partition. The not called a testator, but a donor. In employing the word
obvious remedy is to recover the property from him and "testator," the law evidently desired to distinguish between
one who freely donates his property in life and one who
have it redistributed among the proper recipients.
disposes of it by will to take effect after his death.
Tuason v. Tuason
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constructing roads and curbs on the same and then - Also, the SC held untenable the argument of respondents
subdivide it into small lots for sale. It also provided that the that the requirement that the notice must be in writing is
co-ownership shall be preserved until all the lots have been deemed satisfied when petitioner Francisco Garcia went to
sold. the Office of the Register of Deeds and saw for himself,
- During and after the execution of the MOA Atty. J. Antonio read and understood the contents of the deeds of sale.
Araneta, a member of the board of Araneta, acted as the - By citing another case, the Court did not consider the
attorney in fact of Angela and Antonio Tuason. registration of the deed of sale with the Register of Deeds
- After some time, Angela revoked the powers conferred on sufficient notice, most specially because the property
her attorney in fact and decided to rescind the contract and involved was unregistered land.
asked that the property be partitioned. - Thus, the SC held that petitioners have not lost their right to
redeem, for in the absence of a written notification of the
WON the contract be declared null and void because its terms sale by the vendors, the 30-day period has not even begun
violate the provision of Art. 400 of the Civil Code. to run.
- No, Art.400 of the CC is not applicable. The contract far - The SC also declared that petitioners can claim attorney's
from violating the legal provision that forbids a co-owner fees for bad faith on the part of respondents, first, for
from being obliged to remain a party to the community, refusing redemption, and secondly for declaring the entire
precisely has for its purpose and object the dissolution of land as theirs, although they knew some heirs had not sold
the co-ownership and of the community by selling the parcel their shares.
held in common and dividing the proceeds of the sale - In the interpretation of a related provision (Article 1623 of
among the co-owners. The obligation imposed in the the New Civil Code) this Court had stressed that written
contract to preserve the co-ownership until all the lots shall notice is indispensable, actual knowledge of the sale
have been sold, is a mere incident to the main object of acquired in some other manners by the redemptioner,
dissolving the co-ownership. notwithstanding. He or she is still entitled to written notice,
- By virtue of the document, the parties thereto practically as exacted by the Code, to remove all uncertainty as to the
and substantially entered into a contract of partnership as sale, its terms and its validity, and to quiet any doubt that
the best and most expedient means of eventually dissolving the alienation is not definitive. The law not having provided
the co-ownership, the life of the said partnership to end for any alternative, the method of notifications remains
when the object of its creation shall have been attained. exclusive, though the Code does not prescribe any
- Art. 400: No co-owners shall be obliged to remain a party to particular form of written notice nor any distinctive method
the community. Each may, at any time, demand the for written notification of redemption.
partition of the thing held in common. - In the absence of a written notification of the sale by the
- Nevertheless, an agreement to keep the thing undivided for vendors, the 30-day period provided in Art. 1088 has not
a specified length of time, not exceeding ten years, shall be even begun to run.
valid. This period may be a new agreement.
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Whether the probate court erred in passing upon the intrinsic Whether or not the cause of action already prescribed
validity of the will, before ruling on its allowance or formal - No. According to Art 1623 of the Civil Code, the right of
validity, and in declaring it void. redemption is to be exercised within 30 days from written
- NO. In view of certain unusual provisions of the will, which notice by the prospective vendor.
are of dubious legality, and because of the motion to - The written notice under said article has been declared
withdraw the petition for probate (which the lower court mandatory by the court so as to remove all uncertainties
assumed to have been filed with the petitioner's about the sale, its terms and conditions, as well as its
authorization), the trial court acted correctly in passing upon efficacy and status.
the will's intrinsic validity even before its formal validity had - The written notice of sale, which will commence the
been established. prescriptive period for the filing of an action for legal
- The probate of a will might become an idle ceremony if on redemption granted to heirs, is MANDATORY.
its face it appears to be intrinsically void. Where practical
considerations demand that the intrinsic validity of the will
be passed upon, even before it is probated, the court should
meet the issue
Alejandro v. CA
Garcia v. Calaiman
Verdad v. CA
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CAPACITY TO Art. 1025. In order to be Art. 1025. In order to be Art. 1024. Persons not
SUCCEED capacitated to inherit, the heir, capacitated to inherit, the heir, incapacitated by law may
devisee or legatee must be devisee or legatee must be succeed by will or ab intestato.
living at the moment the living at the moment the The provisions relating to
succession opens, except in succession opens, except in incapacity by will are equally
case of representation, when it case of representation, when it applicable to intestate
is proper. is proper. succession.
A child already conceived A child already conceived
at the time of the death of the at the time of the death of the
decedent is capable of decedent is capable of
succeeding provided it be born succeeding provided it be born
later under the conditions later under the conditions
prescribed in article 41. prescribed in article 41.
ACCEPTANCE Art. 1055. If a person, who is called Art. 1055. If a person, who is called Art. 1041. The acceptance or
OR to the same inheritance as an to the same inheritance as an repudiation of the inheritance is
REPUDIATION heir by will and ab intestato, heir by will and ab intestato, an act which is purely voluntary
OF repudiates the inheritance in his repudiates the inheritance in his and free.
INHERITANCE capacity as a testamentary heir, capacity as a testamentary heir,
he is understood to have he is understood to have Art. 1042. The effects of the
repudiated it in both capacities. repudiated it in both capacities. acceptance or repudiation shall
Should he repudiate it as Should he repudiate it as always retroact to the moment
an intestate heir, without an intestate heir, without of the death of the decedent.
knowledge of his being a knowledge of his being a
testamentary heir, he may still testamentary heir, he may still Art. 1043. No person may accept
accept it in the latter capacity. accept it in the latter capacity. or repudiate an inheritance
unless he is certain of the death
of the person from whom he is
to inherit, and of his right to the
inheritance.
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HALF BLOOD Art. 848. If the testator should Art. 1006. Should brother and
AND FULL institute his brothers and sisters of the full blood survive
BLOOD sisters, and he has some of full together with brothers and
BROTHERS blood and others of half blood, sisters of the half blood, the
AND SISTERS the inheritance shall be former shall be entitled to a
distributed equally unless a share double that of the latter.
different intention appears.
REPRESENTA Art. 856. A voluntary heir who dies Art. 969. If the inheritance should Art. 972. The right of
TION before the testator transmits be repudiated by the nearest representation takes place in
nothing to his heirs. relative, should there be one the direct descending line, but
A compulsory heir who dies before only, or by all the nearest never in the ascending.
the testator, a person relatives called by law to In the collateral line, it
incapacitated to succeed, and succeed, should there be takes place only in favor of the
one who renounces the several, those of the following children of brothers or sisters,
inheritance, shall transmit no degree shall inherit in their own whether they be of the full or
right to his own heirs except in right and cannot represent the half blood.
cases expressly provided for in person or persons repudiating
this Code. the inheritance. Art. 973. In order that
representation may take place,
it is necessary that the
representative himself be
capable of succeeding the
decedent.
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