Professional Documents
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Jen Succession Reviewer
Jen Succession Reviewer
Based on “Jottings and Jurisprudence on the Law on A literal construction of Art774 appears to imply
Succession” by Prof. Balane and Cases according to the that money obligations of the deceased would pass
to the heirs, to the extent that they inherit from him.
2006 Syllabus of Justice Hofileña
• Seemingly, this article mandates that the
heirs receive the estate, and then pay off
the creditors.
However, Philippine procedural law, as influenced
CHAPTER 1 by the common-law system, lays down a different
GENERAL PROVISIONS 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.
ART. 774. Succession is a mode of acquisition by
Rule 90, Sec1 provides for the When the Order for the
virtue of which the property, rights and
Distribution of Residue is made.
obligations to the extent of the value of the According to the rule, when the debts, funeral
inheritance, of a person are transmitted charges and expenses of administration, the
through his death to another or others either allowance to the widow and the inheritance tax
by his will or by operation of law. have all been paid, that is the only time that the
court shall assign the RESIDUE of the estate to
The Code has simplified the concept of succession and persons entitled to it.
treats it simply as one of the 7 Modes of Acquiring The rule also provides that there shall be no
Ownership as enumerated in Art712 of the NCC. distribution until the payment of the obligations
enumerated above, have been made or provided
7 MODES OF ACQUIRING OWNERSHIP for. However, if the distributees give a bond for the
1. Occupation payment of the said obligations within such time
2. Intellectual Creation and of such amount as fixed by the court, the
3. Law distribution may be allowed.
4. Donation
5. Estate and Intestate Succession In our system therefore, money debts are, properly
6. Tradition speaking, not transmitted to the heir nor paid by
7. Prescription them. The estate pays them and it is only what is
left after the debts are paid [residue] that are
Overlap of Codal Definition with Art776 transmitted to the heirs.
Article 774 talks of “property, rights and obligations
to the extent of the value of the inheritance.” Justice JBL Reyes observed that Philippine rules of
Article 776 talks of the “inheritance” as including Succession Mortis Causa proceed from an imperfect
“all the property, rights and obligations of a person blending of 3 Systems with Contrasting Philosophies –
which are not extinguished by his death.” 1. GERMANIC CONCEPT OF UNIVERSAL HEIR
• Heir directly and immediately steps into
For clarity and better correlation, Prof. Balane the shoes of the deceased upon the latter’s
opines that Art774 should rather read: death
“Succession is a mode of acquisition by
virtue of which the inheritance of a person • At one single occasion [uno ictu]
is transmitted through his death to another • Without need of any formality
or others either by his will or by operation of • En mass
law.” • Automatic Subjective Novation
And the inheritance which is transmitted through a 2. FRANCO-SPANISH SYSTEM
person’s death is defined by Article 776 to include • Acquisition of estate by universal title but
“all the property, rights and obligations of a person only upon acceptance by the heir at any time,
which are not extinguished by his death.” with retroactive effect.
• Acceptance may be made any time
What are Transmitted by Succession?
except when the creditors or the court
Only Transmissible Rights and Obligations. requires it be done within a certain time.
General Rule – if the right or obligation is strictly • This is the system followed by the NCC,
personal [intuitu personae], it is intransmissible; by having the following features:
otherwise it may be transmitted. a) Universality of Property Rights and
Obligations
Rule Regarding Pecuniary Obligations b) Transmitted from the moment of
death
c) En bloc, as an entire mass
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his legitimate children and heirs already, in this case Estate of K.H. Hemady v. Luzon Surety
Edmund and Efraim. CA affirmed RTC decision.
- Hence this appeal. - Luzon Surety filed a claim against the Estate based on 20
WON the partition in the Agreement executed by the heirs is different indemnity agreements or counter bonds, each
valid. subscribed by a distinct principal and by the deceased K.H.
- No, there can be no valid partition among the heirs until after Hemady, a surety solidary guarantor in all of them, in
the will has been probated by the probate court. This is consideration of Luzon Surety’s of having guaranteed, the
specially because when the joint agreement executed by various principals in favor of different creditors.
Edmund and Florence partitioning the tractors among - Luzon Surety also prayed for allowance, as a contingent
themselves were executed, there was already a pending claim, of the value of the 20 bonds it had executed in
proceeding for the probate of their late father’s holographic consideration of the counterbonds, and further asked for
will covering the said tractors. Thus the probate court had judgment for the unpaid premiums and documentary stamps
already acquired jurisdiction over the said tractors which affixed to the bonds with 12% interest.
they can’t be divested of. Any extrajudicial agreement needs - Before the answer was filed, the lower court dismissed the
court approval. claims of Luzon Surety, on two grounds: (1) that the
premiums due and cost of documentary stamps were not
WON the heirs’ assumption of the indebtedness of the contemplated under the indemnity agreements to be a part
deceased is valid. of the undertaking of the guarantor (Hemady), since the
- No, the assumption of the indebtedness of the decedent by were not liabilities incurred after the execution of the
Edmund and Florence is not binding. Such assumption was counterbonds; and (2) that “whatever losses may occur after
conditioned upon the agreement above. Hence, when the Hemady’s death, are not chargeable to his estate, because
agreement of partition between Edmund and Florence was upon his death he ceased to be guarantor.”
invalidated, then the assumption of the indebtedness cannot
be given and force and effect. Also, the court should have Whether losses are chargeable to Hemady’s Estate.
filed it money claim against the decedent’s estate in the
probate court. Furthermore, it cannot go after Florence for - YES. While in our successional system the responsibility of
she took no part in the documents related to the tractors, the heirs for the debts of their decedent cannot exceed the
specifically the promissory notes and the continuing value of the inheritance they receive from him, the principle
guaranty agreement; they should have gone after Edmund remains intact that these heirs succeed not only to the rights
being a co-signatory to the promissory notes and guaranty. of the deceased but also to his obligations.
- Under the CC, the heirs, by virtue of the rights of succession
WON the Union Bank can hold the heirs liable on the obligation are subrogated to all the rights and obligations of the
of the deceased. deceased and cannot be regarded as third parties with
- No, Union Bank cannot hold the heirs liable on the obligation respect to a contract to which the deceased was a party,
of the deceased because it had not sufficiently shown that it touching the estate of the deceased.
is the successor-in-interest of the Union Savings and - By contract, the articles of the Civil Code that regulate
Mortgage Bank to which the FCCC assigned its assets and guaranty or suretyship contain no provision that the guaranty
liabilities. Furthermore, the documentary evidence clearly is extinguished upon the death of the guarantor or the
reflects that the parties in the deed of assignment with surety.
assumption of liabilities were the FCCC, and the Union - Although Art. 2056 requires that one who is required to
Savings and Mortgage Bank, with the conformity of Bancom furnish a guarantor must present a person who possesses
Philippine Holdings, Inc. Nowhere can the participation integrity, capacity to bind himself, and sufficient property to
therein of Union Bank as a party can be found. As a result, answer for the obligation which he guarantees, it will be
Union Bank has no personality to file the complaint and noted that the law requires these qualities to be present only
therefore cannot hold the heirs liable for the obligation of the at the time of the perfection of the contract of guaranty
deceased. - The contract of suretyship entered into by K.H. Hemady in
favor of Luzon Surety not being rendered intransmissible
due to the nature of the undertaking, nor by the stipulations
In a sense, it can be said that even money debts are of the contracts themselves, nor by provision of law, his
transmitted to and paid for by the heirs, but this would eventual liability thereunder necessarily passed upon his
be by mere indirection – death to his heirs. The contracts, therefore, give rise to
Because whatever payment is thus made from the contingent claims provable against his estate.
estate is ultimately a payment by the heirs and - The SC reversed the order of the lower court and instead
distributes, since the amount of the paid claim in ordered the case be remanded to the CFI.
fact diminishes or reduces the shares that the heirs - The general rule is that a party’s contractual rights and
would have been entitled to receive. obligations are transmissible to the successors.
- Art. 1311 of NCC: Contracts take effect only as between the
BUT only the payment of MONEY DEBTS has been parties, their assigns and heirs, except in the case where the
affected by the Rules of Court. The transmission of rights and obligations arising from the contract are not
other obligations not by nature personal follows the rule transmissible by their nature, or by stipulation or by provision
in Art774 and is transmitted by succession. of law.
- Art. 774 of NCC: Succession is a mode of acquisition by
virtue of which the property, rights and obligations to the
CASE extent of the value of the inheritance of a person are
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transmitted through his death to another or other either by - The children are, however, liable only to the extent of the
his will or by operation of law. value of their inheritance.
- Art. 776 of NCC: The inheritance includes all the property, - Art. 774, NCC: Succession is a mode of acquisition by virtue
rights and obligations of a person which are not of which the property, rights and obligations to the extent of
extinguished by his death. the value of the inheritance, of a person are transmitted
- The binding effect of contracts upon the heirs of the through his death to another or others either by his will or by
operation of law.
deceased party is not altered by the provision in the Rules of
- Art. 776, NCC: The inheritance includes all the property,
Court that money debts of a deceased must be liquidated
rights and obligations of a person which are not extinguished
and paid from the estate before the residue is distributed
by his death.
among said heirs. The reasons is that whatever payment is
made from the estate is ultimately a payment by the heirs,
since the amount of the paid claim in fact diminishes or
reduces the shares that the heirs would have been entitled ART. 775. In this Title, “decedent” is the general
to receive. term applied to the person whose property is
transmitted through succession, whether or
not he left a will. If he left a will, he is also
called the testator.
WON it was correctly ruled that the children of Alvarez be ART. 777. The rights to the succession are
made responsible for the liability of their father (Alvarez). transmitted from the moment of the death of
- YES. The rights and obligations of the deceased are
the decedent.
generally transmissible to his legitimate children and heirs.
- As heirs of the late Alvarez, the children cannot escape the Time of Vesting of Successional Right
consequences of their father’s transaction, which gave rise
to the present claim for damages.
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Prof. Balane says the terminology used in this article is - However, it was the common-life, Maria del Rosario who
“infelicitous” because the right to the succession is not took possession of the lands, depriving Unson the
transmitted; but rather vested. enjoyment and possession of the same.
To say that it is transmitted upon death implies that - Thus, the legal wife filed a case for recovery of ownership
before the decedent’s death, the right to the and possession of the said parcels of land against del
succession was possessed by the decedent [which Rosario.
- Maria de Rosario contended that Unson and Faustino
is absurd].
agreed to separate some time in 1931. Unson was given a
To say that it vests upon death implies that before parcel of land as alimony on the condition that the latter will
the decedent’s death the right was merely inchoate renounce her right to inherit any property that may be left by
[which is correct]. the husband upon his death.
- Whether or not Unson is entitled to recover the parcels of
land in question.
THE LAW PRESUMES THAT THE PERSON
SUCCEEDING – - The SC held for Maria Unson.
1. Has a right to succeed by - The Civil Code provides that the inheritance of a person is
a) Legitime [compulsory succession], transmitted to another at the moment of his death.
- Accordingly, the Supreme Court said that the parcels of land
b) Will [testamentary succession], or
of Faustino passed from the moment of his death to his only
c) Law [intestate succession]
heir, Maria Unson.
2. Has the legal capacity to succeed, and - The contention that Unson and Faustino agreed that the
3. Accepts the successional portion former would NOT inherit anything from the latter cannot be
made effectual. Future inheritance cannot be validly made
the subject of any contract nor can it be renounced.
- Del Rosario also argued that her illegitimate children with
Faustino have the right to inherit by virtue of the provision of
the new Civil Code granting successional rights to
illegitimate children.
The vesting of the right occurs immediately upon
- Said argument is untenable. It is true that the new Civil
the decedent’s death; i.e. without a moment’s
Code grants successional rights to illegitimate children and
interruption. From this principle, the following that this right shall be given retroactive effect even though
consequences flow – the event which gave rise to said right may have occurred
1. The law in force at the time of the decedent’s under the former legislation. (Faustino died in 1945, The
death will determine who the heirs should be NCC took effect in 1950).
• New Civil Code – August 30, 1950 - However, according to the NCC, this new right must not
2. Ownership passes to the heir at the very prejudice or impair any vested or acquired right.
- In this case, and as already explained, the right over the
moment of death, who therefore, from that
parcels of land vested upon Unson from the moment of
moment acquires the right to dispose of his share.
death of Faustino. Thus, the new right cannot be enforced
3. The heirs have the right to be substituted for w/out prejudice to Unson’s vested right over the properties.
the deceased as party in an action that survives. - Rights over the inheritance of a person are transmitted upon
• Because the heir acquires ownership at his death to another.
the moment of death and become parties
in interest. - ‘The property belongs to the heirs at the moment of death of
the ancestor as completely as if the ancestor had executed
and delivered to them a deed for the same before his death.”
It should be emphasized that the operation of Art. 777
is at the very moment of the decedent’s death, meaning
the transmission by succession occurs at the
De Borja v. De Borja
precise moment of death and therefore the heir,
Ownership passes to heir at the
devisee, or legatee is legally deemed to have
very moment of death, with right to dispose
acquired ownership at that moment, even if,
particularly in the heir’s case, he will generally not
- Francisco De Borja and Jose De Borja were co-
know how much he will be inheriting and what
administrators of the testate estate of Josefa De Borja,
properties he will ultimately be receiving, and not at Francisco’s wife and Jose’s mother
the time of declaration of heirs or partition or - When Francisco died, Jose became the sole administrator in
distribution. the testate proceedings of his mother before the CFI of
Rizal.
CASES - It appears that after the death of Josefa, widower Francisco
Uson v. Del Rosario married Tasiana Ongsingco.
Law in force at time of decedent’s death - Following the death of Francisco, Tasiana was appointed as
determines who the heirs should be. special administratrix in the testate proceedings of Francisco
before the CFI of Nueva Ecija.
- Maria Unson was the legal wife of Faustino Nebrada. - Multiple suits ensued between the children of the first
Faustino died in 1945 leaving 5 parcels of land with no other marriage and Tasiana until at some point, when both parties
heir except his legal wife.
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agreed to enter into a compromise agreement on October - NO. In the very opening paragraph of the agreement itself,
12, 1963. she was described as the heir and surviving spouse of
- In the said agreement, Jose De Borja, personally and as Francisco De Borja which was a definite admission of her
administrator of the estate of Josefa, and Tasiana civil status.
Ongsingco, expressed their mutual desire to end the suits
between them by selling the Poblacion portion of the Whether or not the compromise agreement had ceased to be
Jalajala, Rizal properties of Francisco, from the proceeds of valid.
which P800,000, representing P200,000 from each of the 4 - NO. Jose’s act of seeking a court order for the approval and
children from the first marriage, shall be paid to Tasiana as enforcement of the agreement is justified as said agreement
full and complete payment and settlement of Tasiana’s had not been abandoned and not invalidated by the inability
hereditary share in the estate of Francisco as well as of of the parties to reach a novatory accord in a quest for a
Josefa, and to any properties bequeathed or devised to her more satisfactory compromise following Tasiana’s unilateral
by Francisco, by will or by donation purportedly conveyed attempts to back out from the same.
for consideration or otherwise. - A hereditary share in a decedent’s estate is transmitted or
- The CFI of Rizal approved the agreement whereas the CFI
vested immediately from the moment of the death of such
of Nueva Ecija did not. causante or predecessor in interest (Art. 777, NCC.)
- Tasiana’s grounds for her opposition to the agreement after - Thus, there is no legal bar to a successor (with requisite
it was submitted to the court for approval were: 1) no such contracting capacity) disposing of his or her hereditary share
agreement is valid without first probating the will of immediately after such death, even if the actual extent of
Francisco; 2) it compromises the validity of the marriage such share is not determined until the subsequent liquidation
between Francisco and Tasiana; and, 3) the resolutory 60- of the estate.
day period had lapsed so that the agreement had ceased to - The effect of such alienation is limited to what is ultimately
be valid.
adjudicated to the vendor heir.
- Tasiana cited Guevara v. Guevara which did not allow an - The only difference between an extrajudicial compromise
extrajudicial settlement of a decedent’s estate if there has and one submitted and approved by the court is that the
been left a will, stating that it was against the law and public latter is enforceable by execution proceedings.
policy.
- Thus, pending probate of Francisco’s will when the
agreement was made, it was invalid.
Whether or not the compromise agreement was invalid without Bonilla v. Barcena
first probating the will of Francisco. Heirs have right to be substituted for deceased
- NO. The compromise agreement was valid. in an action that survives.
- Guevara v. Guevara was inapplicable.
- Following a review of the provision in the agreement where - On March 31, 1975 Fortunata Barcena, mother of minors
full and complete payment was made to Tasiana in the Rosalio Bonilla and Salvacion Bonilla and wife of Ponciano
amount of P800,000, it was clear that there was no attempt Bonilla, instituted a civil action in the Court of First Instance
to settle or distribute Francisco’s estate before the probate of of Abra, to quiet title over certain parcels of land located in
his will. Abra.
- Its object was conveyance by Tasiana of her individual - On August 4, 1975, the defendants filed a motion to dismiss
share and interest, actual or eventual, in the estates of the complaint on the ground that Fortunata Barcena is dead
Francisco and Josefa. and, therefore, has no legal capacity to sue.
- A hereditary share in a decedent’s estate is transmitted or - During the hearing, counsel for the plaintiff confirmed the
death of Fortunata Barcena and asked for substitution by her
vested immediately from the moment of the death of such
minor children and her husband, the petitioners herein; but
causante or predecessor in interest (Art. 777, NCC.)
the court after the hearing immediately dismissed the case
- Thus, there is no legal bar to a successor (with requisite
on the ground that a dead person cannot be a real party in
contracting capacity) disposing of his or her hereditary share
interest and has no legal personality to sue.
immediately after such death, even if the actual extent of
such share is not determined until the subsequent liquidation
- Whether the court acted correctly in dismissing the
of the estate.
complaint on the ground that the plaintiff, who had died
- The effect of such alienation is limited to what is ultimately
pending the proceedings, has no more personality to sue.
adjudicated to the vendor heir.
- While it is true that a person who is dead cannot sue in
- Moreover, as surviving spouse of Francisco’s, Tasiana was
court, yet he can be substituted by his heirs in pursuing the
a compulsory heir so that her successional interest existed
case up to its completion.
independent of Francisco’s will and testament and would
- The court had acquired jurisdiction over the person of the
exist even if such were not probated at all.
deceased. If thereafter she died, Section 16, Rule 3 of the
- Also, the agreement bound the parties, in their individual
Rules of Court provides that "whenever a party to a pending
capacities, upon the perfection of the contract, even absent case dies . . . it shall be the duty of his attorney to inform the
a previous authority from the Court. court promptly of such death . . . and to give the name and
- The only difference between an extrajudicial compromise residence of his executor, administrator, guardian or other
and one submitted and approved by the court is that the legal representatives." This duty was complied with by the
latter is enforceable by execution proceedings. counsel for the deceased plaintiff when he manifested
before the respondent Court that Fortunata Barcena died on
Whether or not the agreement compromises the status and
validity of the marriage between Francisco and Tasiana.
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July 9, 1975 and asked for the proper substitution of parties - YES. SC held that probate court has jurisdiction over it since
in the case. it covers all matters relating to the settlement of estates and
- Article 777 of the Civil Code provides "that the rights to the the probate of wills of deceased persons, including the
succession are transmitted from the moment of the death of appointment and removal of administrators and executors. It
the decedent." From the moment of the death of the also extends to incidental and collateral matters such as
decedent, the heirs become the absolute owners of his selling, mortgaging or otherwise encumbering real property
property, subject to the rights and obligations of the belonging to the estate.
decedent, and they cannot be deprived of their rights thereto - The stipulation requiring court approval does not affect the
except by the methods provided for by law. The moment of validity and the effectivity of the sale as regards the selling
death is the determining factor when the heirs acquire a heirs. It merely implies that that the property may be taken
definite right to the inheritance whether such right be pure or out of custodia legis, only with court’s permission.
contingent. The right of the heirs to the property of the
deceased vests in them even before judicial declaration of Whether or not Lina can apply to the court for the approval of
their being heirs in the testate or intestate proceedings. the sale.
When Fortunata Barcena, therefore, died her claim or right - Because the other heirs did not consent to the sale of their
to the parcels of land in litigation was not extinguished by ideal shares in the disputed lots, it is only limited to the pro-
her death but was transmitted to her heirs upon her death. indiviso share of Eliosoro.
Her heirs have thus acquired interest in the properties in - The proper party must be the one who is to be benefited or
litigation and became parties in interest in the case. There injured by the judgment, or one who is to be entitled to the
is, therefore, no reason for the Court to disallow their avails of the suit.
substitution as parties in interest for the deceased plaintiff.
- Likewise, when counsel asked that the minor children be Whether or not Eliosoro is in bad faith
substituted for the deceased and suggested that the uncle - NO. SC held that he is not in bad faith because: (1) he
be appointed as guardian ad litem for them because their informed Lina of the need to secure court approval prior to
father is busy earning a living for the family, it is grave error the sale of the lots, and (2) he did not promise he could
for the court to refuse the request for substitution on the obtain the approval.
ground that the children were still minors and cannot sue,
because it ought to know that Section 17, Rule 3 of the How much is Eliosoro’s share in the property?
Rules of Court, directs the Court to appoint a guardian ad - SC held that his share is 11/20 of the entire property
litem for the minor. because he owned ½ of these lots plus a further 1/10 of the
- From the moment of the death of the decedent, the heirs remaining half, in his capacity as one of the legal heirs.
become the absolute owners of his property, subject to the
rights and obligations of the decedent, and they cannot be
deprived of right thereto except by the methods provided for
by law. The moment of death is the determining factor where
the heirs acquire a definite right to the inheritance whether
such right to be pure or contingent. The right of the heirs to Limjoco v. Intestate of Flagrante
the property of the deceased vests in them even before
judicial declaration of their being heirs in the testate or - Assailed is the decision of the Public Service Commission
intestate proceedings. granting a certificate of public convenience to install,
maintain and operate an ice plant in San Juan to the
Cases for Articles 774-777 Intestate Estate of Pedro O. Fragrante.
- Fragrante died pending the conclusion of his application to
Commission.
Heirs of Spouses Sandejas v. Lina - The Commission granted the application in view of the
financial ability of the estate to maintain and operate the ice
- Eliosoro Sandejas was appointed administrator for the plant
settlement of the estate of his wife, Remedios.
- He eventually sold parcels of land to Alex Lina, who agreed Whether the substitution of the legal representative of the
to buy it for P1M. Estate of Fragante for the latter as party applicant in the case
- Eliosoro eventually died and Alex Lina was appointed new pending before the Commission be allowed.
administrator of the estate of Remedios. - Yes. Had Fragante not died, he would have the right to
- The heirs of Sandejas now filed a MR for the appointment of prosecute his application to its final conclusion. This right
a new administrator. did not lapse through his death. Hence, it constitutes a part
- Lina filed a Motion to approve the deed of conditional sale. of the assets of his estate, for such a right was property
despite the possibility that the application may be denied. A
Whether or not Eliosoro is legally obligated to convey title to certificate of public convenience once granted should
the property which is found by the lower court to be a contract descend to the estate as an asset. Such certificate would
to sell. certainly be property and the right to acquire such belonged
- NO. Because the condition is the procurement of court to the decedent in his lifetime and survived to his estate and
approval and not the payment of the purchase price. judicial administrator after his death.
Whether or not the probate court has jurisdiction over the Whether the Estate of Fragante is a person within the meaning
approval of the sale. of the Public Service Act.
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CHAPTER 2
TESTAMENTARY SUCCESSION
SECTION 1 – WILLS
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- The conveyance is not mortis causa, which should be 3. The determination of the portions they are to
embodied in a will. A will is a personal, solemn, revocable receive.
and free act by which a capacitated person disposes of his
property and rights and declares or complies with duties to
take effect after his death. The bequest or devise must
pertain to the testator.
- In this case, the savings account involved was in the nature
of conjugal funds.
- Since it was not shown that the funds belonged exclusively ART. 786. The testator may entrust to a third
to one party, it is presumed to be conjugal. person the distribution of specific property or
- It is also not a donation inter vivos because it was to take sums of money that he may leave in general
effect after the death of one party. It is also not a donation to specified classes or causes, and also the
between spouses because it involved no conveyance of a designation of the persons, institutions or
spouse’s own properties to the other. establishments to which such property or
- It was an error to include the savings account in the sums are to be given or applied.
inventory of the deceased’s assets because it is the
separate property of Romarico.
- Thus, Romarico had the right to claim reimbursement. Exception to the Rule on Non-Delegability of Will-
Making. Without this provision, the things allowed to be
- A will is a personal, solemn, revocable and free act by which delegated here would be non-delegable.
a capacitated person disposes of his property and rights and
declares or complies with duties to take effect after his TWO THINGS MUST BE DETERMINED BY THE
death. TESTATOR –
- Survivorship agreements are permitted by the NCC. 1. The property or amount of money to be given;
However, its operation or effect must not be violative of the
and
law (i.e. used as a cloak to hide an inofficious donation or to
2. The class or the cause to be benefited.
transfer property in fraud of creditors or to defeat the legitime
of a forced heir).
TWO THINGS MAY BE DELEGATED BY THE
TESTATOR –
1. The designation of persons, institutions, or
establishments within the class or cause;
2. The manner of distribution
ART. 784. The making of a will is a strictly
personal act; it cannot be left in whole or in Question – Suppose the testator specified the
part to the discretion of a third person, or recipients by specific designation but left to the 3rd
accomplished through the instrumentality of person the determination of the sharing, ex. “I leave
an agent or attorney. P500,000 for the PNRC, the SPCA, and the Tala
Leprosarium, to be distributed among these institutions
This provision gives the will its purely personal in such proportions as my executor may determine.”
character. Valid?
One View – Article 785 seems to prohibit this,
NON-DELEGABILITY OF WILL-MAKING – because the recipients are referred to by name and
It is the exercise of the disposing power that therefore the portions they are to take must be
cannot be delegated. determined by the testator. Article 786 applies only
Obviously, mechanical aspects, such as typing, do where the testator merely specifies the class or the
not fall within the prohibition. cause but not the specific recipients.
Contra – This actually involves a lesser discretion
for the 3rd person than the instances allowed by
ART. 785. The duration or efficacy of the Article 786 and should be allowed.
designation of heirs, devisees or legatees, or
the determination of the portions which they
are to take, when referred to by name, cannot ART. 787. The testator may not make a
be left to the discretion of a third person. testamentary disposition in such manner that
another person has to determine whether or
What Constitute the Essence of Will-Making or the not it is to be operative.
Exercise of the Disposing Power? The ff are non-
delegable: This rule is consistent with, and reinforces, the purely
1. The designation of heirs, devisees or legatees person character of a will, laid down in Article 784.
2. The duration of efficacy of such designation, This article should be interpreted rationally. It is not to
including such things as conditions, terms, be so interpreted as to make it clash with the principle
substitutions; expressed in Articles 1041-1057 of the NCC that the
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heir is free to accept or reject the testamentary b. His right in the share of Dona Luisa is expressly
disposition. left to him as a legacy.
What this article prohibits is the delegation to a 3rd - The reservation of property in a will to the name of specific
person of the power to decide whether a disposition persons shall be considered as a legacy.
should take effect or not. - Where the will authorizes the executor to pay the legacies,
expressly or by natural inference, action will lie by the
legatee against the executor to compel allowance and
payment hereof. If the executor is not authorized, action will
lie against the heirs. An heir on the other hand, can maintain
no such action against the executor.
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HOW TO DEAL WITH AMBIGUITIES – ART. 791. The words of a will are to receive an
The provisions of this article do not make a interpretation which will give to every
distinction in the solution of the problem of expression some effect, rather than one
ambiguities – whether latent or patent.
which will render any of the expressions
• Hence, the distinction between the 2 kinds
inoperative; and of two modes of interpreting
of ambiguity is, in the light of the codal
provisions, an all but theoretical one. a will, that is to be preferred which will
prevent intestacy.
The ambiguity should, as far as possible, be
A similar rule is found in Rule 130 Sec11 of the RoC –
cleared up or resolved, in order to give effect to the Sec11. Instrument construed so as to give
testamentary disposition.
effect to all provisions – In the construction of an
• Based on principle that testacy is instrument where there are several provisions or
preferred to intestacy. particulars, such a construction is, if possible, to
be adopted as will give effect to all.
Ambiguity may be resolved using any evidence
admissible and relevant, excluding the oral In contractual interpretation, Articles 1373 and 1374 lay
declarations of the testator as to his intention. down similar principles –
• Reason for the statutory exclusion is that Art1373. If some stipulation of any contract
a dead man cannot refute a tale. should admit of several meanings, it shall be
understood as bearing that import which is most
adequate to render it effectual.
Art1374. The various stipulations of a
ART. 790. The words of a will are to be taken in
contract shall be interpreted together,
their ordinary and grammatical sense, unless attributing to the doubtful one that sense which
a clear intention to use them in another sense may result from all of them taken jointly.
can be gathered, and that other can be
ascertained.
Technical words in a will are to be taken ART. 792. The invalidity of one of several
in their technical sense, unless the context dispositions contained in a will does not
clearly indicates a contrary intention, or result in the invalidity of the other
unless it satisfactorily appears that he was dispositions, unless it is to be presumed that
unacquainted with such technical sense. the testator would not have made such other
dispositions if the first invalid disposition had
Similar rules are laid down in Rule 130 Sections 10 and
not been made.
14 of the Rules of Court –
Sec10. Interpretation of a writing according
This article makes applicable to wills the
to its legal meaning – The language of a writing
is to be interpreted according to the legal SEVERABILITY OR SEPARABILITY PRINCIPLE in
meaning it bears in the place of its execution, statutory construction frequently expressly provided in a
separability clause.
unless the parties intended otherwise.
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The source of this article is Art2085 of the German Civil part or interest, unless the testator expressly declares
Code which provides that the invalidity of one of several that he gives the thing in its entirety.
dispositions contained in a will results in the invalidity of
the other dispositions only if it is to be presumed that GENERAL RULE – in a legacy or devise the testator
the testator would not have made these if the invalid gives exactly the interest he has in the thing.
disposition had not been made. EXCEPTIONS – he can give a less interest [Art794] or a
greater interest [Art929] than he has.
ART. 793. Property acquired after the making of a In the latter case, if the person owning the interest
to be acquired does not wish to part with it, the
will shall only pass thereby, as if the testator
solution in Art931 can be applied wherein the
had possessed it at the time of making the legatee or devisee shall be entitled only to the
will, should it expressly appear by the will JUST VALUE OF THE INTEREST that should
that such was his intention. have been acquired.
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taken to carry out the intention of the testator which is the her widowhood the children of their servants and the two
controlling factor and which may override any defect in form. children of D. Lucas y Eugenio;
- In the same will, Miguel Fabie authorized her wife to provide
Whether or not the provisions of the New Civil Code which in her will that property be delivered to the persons who may
allowed holographic wills may be applied to validate Fr. have assisted and cared for her during her widowhood until
Abadia’s will. her death and to sell the property so that the proceeds to be
- NO. No subsequent law with more liberal requirements or divided if there be any foreseeable disagreements over the
which dispenses with such requirements as to execution property;
should be allowed to validate a defective will and thereby - The same will also provided that should the wife forget to
divest the heirs of their vested rights in the estate by make a will, that it be complied with and fulfilled by his
intestate succession. The general rule is that the Legislature brother Ramon Fable.
cannot validate void wills. - The testator’s will, as recorded in the abovementioned is so
- Art. 795 of the New Civil Code provides: “The validity of a clear and definite that in order duly to comply therewith, it
will as to its form depends upon the observance of the law in needs but be determined who are the persons that must be
force at the time it is made.” considered as the legatees on account of their having
- The above provision weight of authority to the effect that the served and cared for the testator’s widow until their death.
validity of a will is to be judged not by the law in force at the - From a due examination of the evidence presented at the
time of the testator’s death or at the time the supposed will is trial, those entitled are Encarnacion Gutierrez Calderon,
presented in court for probate or when the petition is Filomena Calderon, Potenciana de la Cruz, Basilisa
decided by the court but at the time the instrument was Salteras, Candida Reyes, Benita Garcia, Maria and Josefa
executed. Calderon and Petronilla Eugenio.
- The wishes of the testator about the disposition of his estate - The minor children were also of service to the widow, and
among his heirs and among the legatees is given solemn should equally receive a pro-rate share on the property’s
expression at the time the will is executed, and in reality, the value. It was not only Petronila who had served the widow,
legacy or bequest then becomes a completed act. there were many others and she should not alone get the
- The position that subsequent statutes should be applied to property.
validate wills defectively executed according to the law in - Since some of them did so, as proven by the record, the law
force at the time of execution is untenable. must be fulfilled in accordance with the tenor of the last will
- The reason for the above is that from the day of the death of of the testator.
the testator, if he leaves a will, the title of the legatees and - It is the settled rule that the intention and wishes of the
devisees under it becomes a vested right, protected under testator, when clearly expressed in his will, constitute the
the due process clause of the constitution. fixed law of interpretation.
- Art. 795 of the New Civil Code provides: “The validity of a
will as to its form depends upon the observance of the law in Balanay v. Martinez
force at the time it is made.”
- The above provision weight of authority to the effect that the - Leodegaria Julian, in her will, partitioned her paraphernal as
validity of a will is to be judged not by the law in force at the well as all the conjugal properties as if they were all owned
time of the testator’s death or at the time the supposed will is by her, disposing of her husband's one-half share, and
presented in court for probate or when the petition is providing that the properties should not be divided during
decided by the court but at the time the instrument was her husband's lifetime but should remain intact and that the
executed. legitimes should be paid in cash to be satisfied out of the
- No subsequent law with more liberal requirements or which fruits of the properties.
dispenses with such requirements as to execution should be - Felix Balanay, Jr. filed a petition for the approval of his
allowed to validate a defective will and thereby divest the mother's will which was opposed by the husband and some
heirs of their vested rights in the estate by intestate of her children.
succession. The general rule is that the Legislature cannot - During the pendency of the probate proceedings petitioner
validate void wills. submitted to the court a document showing his father's
conformity to the testamentary distribution, renouncing his
In re Estate of Calderon hereditary rights in favor of his children in deference to the
memory of his wife.
- This is an appeal made by the attorneys for Basilla Salteras, - The Court denied the opposition, set for hearing the probate
Potenciana de la Cruz and Benigno Calderon, the latter as of the will and gave effect to the affidavit and conformity of
the natural guardian of the minors Maria and Josefa the surviving spouse.
Calderon from an order which directed that the administrator - Meanwhile, a certain Atty. David Montaña, Sr. allegedly, in
be authorized to make a conveyance of property, a house behalf of the petitioner, moved to dismiss the probate
and lot, situate in Binondo to Petronila Eugenio. proceedings and requested authority to proceed by intestate
- The case questions on 1) How and what manner the proceedings on the ground that the will was void (because
provisions made by the testator, the deceased Miguel Fable, Leodegaria cannot validly dispose of her husband’s share) ,
in clause 12 of his will should be complied with; and 2) Who which motion was granted by the probate court. The Court,
should receive pro rata the legacy specified in the said however, did not abrogate its prior orders to proceed with
clause. the probate proceedings.
- Petitioner impugned the order of dismissal claiming that Atty.
- The said clause states that the property on Calle Analogue
Montaña had no authority to ask for the dismissal of the
will be left as legacy to his wife under the condition that with petition for allowance of will and that the court erred in
its revenue she shall care for and educate and assist during declaring the will void before resolving the question of its
formal validity.
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Whether the court erred in converting the testate proceeding Bellis v. Bellis
into an intestate proceeding notwithstanding the fact that in its
order of June '8, 1973 it gave effect to the surviving husband's - Amos Bellis was a citizen of the State of Texas and of the
conformity to the will and to his renunciation of his hereditary United States.
rights which presumably included his one-half share of the - By his first wife, he had 5 legitimate children; by his second
conjugal estate. wife, he had 3 legitimate children; and he had 3 illegitimate
- YES. The rule is that "the invalidity of one of several children.
dispositions contained in a will does not result in the - Amos executed a will in the Philippines, in which he
invalidity of the other dispositions, unless it is to he specified how his estate will be divided and distributed.
presumed that the testator would not have made such other - Subsequently, Amos died, a resident of Texas.
dispositions if the first invalid disposition had not been - His will was admitted to probate in the CFI of Manila.
made" (Art. 792, Civil Code). - The People’s Bank, as executor of will, paid all the bequests
- "Where some of the provisions of a will are valid and others included in Amos’ will.
invalid, the valid parts will be upheld if they can be - Before closing its administration, the executor submitted its
separated from the invalid without defeating the intention of final report and project of partition.
the testator or interfering with the general testamentary - However, 2 of Amos’ illegitimate children filed their
scheme, or doing injustice to the beneficiaries" oppositions to the project of partition on the ground that they
- Void provisions in the will: were deprived of their legitimes as illegitimate children and
1. The statement of the testatrix that she owned the therefore compulsory heirs of the deceased.
"southern half" of the conjugal lands is contrary to law - The CFI issued an order overruling the oppositions and
because, although she was a co-owner thereof, her approving the executor’s final account, report and project
share was inchoate and pro indiviso partition. The lower court, relying upon Art. 16 of the NCC,
2. that the properties of the testatrix should not be applied the national law of Amos, which is the Texas law,
divided among her heirs during her husband's lifetime which did not provide for legitimes.
but should be kept intact and that the legitimes - The illegitimate children thus filed an Appeal.
should be paid in cash is contrary to article '080 of
the Civil Code Whether this case falls under Art. 17 of the NCC.
- NO.
Whether an heir may validly renounce his share
- YES. Felix Balanay, Sr. could validly renounce his hereditary - Appellants argue that their case falls under the
rights and his one-half share of the conjugal partnership circumstances mentioned in the 3rd paragraph of Art. 17 in
(Arts. '79['] and '04', Civil Code) but insofar as said relation to Art. 16 of the NCC. It argues that Art. 17 prevails
renunciation partakes of a donation of his hereditary rights as the exception to Art. 16.
and his one-half share in the conjugal estate (Art. '050['] Civil - The SC rule that appellants argument is incorrect.
Code), it should be subject to the limitations prescribed in - It ruled that the change in the NCC shows that whatever
articles 750 and 752 of the Civil Code. A portion of the public policy and good customs may be involved in our
estate should be adjudicated to the widower for his support system of legitimes, Congress has not intended to extend
and maintenance. Or at least his legitime should be the same to the succession of foreign nationals. Congress
respected. has specifically chose to leave the amount of successional
- Generally, the probate of a will is mandatory and it is the rights to the decedent’s national law.
duty of the court to pass first upon its formal validity except
in extreme cases where the will is on its face intrinsically Whether Philippine law should govern to Amos’ Philippine
void. estate.
- A will is not rendered null and void by reason of the - NO. Appellants argued that Amos executed 2 wills – one to
existence of some illegal or void provisions since the govern his Texas estate and the other his Philippine estate –
invalidity of one of several dispositions contained in a will arguing that he intended Philippine law to govern his
does not result in the invalidity of the other dispositions Philippine estate.
unless it is to be presumed that the testator would not have - The SC held that that a provision in a foreigner’s will to the
effect that his properties shall be distributed in accordance
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with Philippine law and not with his national law, is illegal nature of the estate to be disposed of, the
and void, for his national law cannot be ignored in regard to proper objects of his bounty, and the
those matters that Art. 16 of the NCC states said national
character of the testamentary act.
law should govern.
Which law must apply – Texas law or Philippine law? ART. 800. The law presumes that every person is
- Texas law applies. of sound mind, in the absence of proof to the
- The petitioners admit that Amos was a citizen of State of contrary.
Texas and that under the laws of Texas, there are no forced The burden of proof that the testator was
heirs of legitimes.
not of sound mind at the time of making his
- Accordingly, since the intrinsic validity of the provision of the
will and the amount of successional rights are to be dispositions is on the person who opposes
determined under Texas law, the Philippine law on legitimes the probate of the will; but if the testator, one
cannot be applied to the testacy of Amos. month, or less, before making his will was
- Art. 16: Real property as well as personal property is subject publicly known to be insane, the person who
ot the law of the country where it is situated. However, maintains the validity of the will must prove
intestate and testamentary succession, both with respect to that the testator made it during a lucid
the order of succession and to the amount of successional interval.
rights and to the intrinsic validity of testamentary provisions,
shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the ART. 801. Supervening incapacity does not
nature of the property and regardless of the country wherein invalidate an effective will, nor is the will of an
said property may be found. incapable validated by the supervening of
- Art. 1039: Capacity to succeed is governed by the law of the capacity.
nation of the decedent.
- Art. 17: Prohibitive laws concerning persons, their acts or Articles 796-801 lay down the rules on testamentary
property, and those which have for their object public order, capacity.
public policy and good customs shall not be rendered Testamentary Capacity – testamenti factio;
ineffective by laws or judgments promulgated, or by testamentifacción active, the legal capacity to make
determinations or conventions agreed upon in a foreign a will.
country. Who has testamentary capacity? All NATURAL
- The decedent’s national law governs the (1) order of persons, unless disqualified by law. Juridical
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
capacity to succeed. DISQUALIFIED PERSONS
- Testamentary provision that successional right to decedent’s
1. THOSE UNDER 18 [ART797]
estate would be governed by law other than his national law
if void, being contrary to article 16 of the NCC. • Under EO292, the Administrative Code of
1987, which took effect on November 24,
1989, years are now reckoned according to
Subsection 2 – Testamentary Capacity the Gregorian Calendar.
And Intent • Sec31 provides for the legal periods
a) Year – 12 calendar months
b) Month – 30 days, unless specific
ART. 796. All persons who are not expressly
calendar month is referred to, in
prohibited by law may make a will. which case it shall be computed
according to the number of days the
ART. 797. Persons of either sex under eighteen specific calendar month contains
years of age cannot make a will. c) Day – 24 hours
d) Night – Sunset to sunrise
ART. 798. In order to make a will it is essential 2. THOSE OF UNSOUND MIND [ART798]
that the testator be of sound mind at the time
of its execution.
• Unsoundness of Mind [Insanity]
Absence of the qualities of soundness of
mind
ART. 799. To be of sound mind, it is not Defined by the Code only by indirection
necessary that the testator be in full because only soundness of mind is
possession of all his reasoning faculties, or defined under Art799.
that his mind be wholly unbroken,
unimpaired, or unshattered by disease, injury SOUNDNESS OF MIND [SANITY]
or other cause. NEGATIVELY
It shall be sufficient if the testator was 1. Not necessary that testator be in full
able at the time of making the will to know the possession of reasoning faculties
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2. Not necessary that testator’s mind be wholly ART. 802. A married woman may make a will
unbroken, unimpaired, unshattered by without the consent of her husband, and
disease, injury or other cause. without the authority of the court.
POSITIVELY – Ability to know 3 things
Sexist provision, contains an erroneous and unintended
1. Nature of estate to be disposed of
suggestion that a married man does not have the same
• Testator should have a fairly accurate
privilege.
knowledge of what he owns.
• The more one owns, the less accurate his Suggested rewording –
knowledge of his estate expected to be. “A married person may make a will without his or
2. Proper objects of one’s bounty; & her spouse’s consent.”
• Testator should know, under ordinary
circumstances, his relatives in the most
proximate degrees, his knowledge ART. 803. A married woman may dispose by will
expectedly decreasing as the degrees of all her separate property as well as her
become more remote. share of the conjugal partnership or absolute
3. Character of testamentary act. community property.
• It is not required that the testator know the
legal nature of a will with the erudition of a Sexist provision, contains an erroneous and unintended
civilest. suggestion that a married man does not have the same
• All that he need know is that the privilege.
document he is executing is one that
disposes of his property upon death. Article 97 of the Family Code supersedes this in part
Art97. Either spouse may dispose by will of his or
Legal Importance and Implication of Mental Capacity her interest in the community property.
Law is interested in the legal consequences of the
testator’s mental capacity or incapacity, not in the
medical aspects of mental disease. Cases for Arts. 796-803
The testator could be mentally aberrant medically
but testamentarily capable, or vice versa, mentally Bagtas v. Paguio
competent medically but testamentarily
incompetent. - This is an appeal from an order of the CFI admitting to
TEST – as long as the testator, at the time he probate a document which was offered as the last will and
testament of Pioquinto Paguio.
made the will, was capable of perceiving the three
- The testator died a year and 5 months following the date of
things [nature of estate, objects of bounty, and the execution of the will.
character of testamentary act], he has - For some 14 or 15 years prior to his death, the testator
testamentary capacity, whatever else he may be suffered from paralysis of the left side of his body.
medically. - A few years prior to his death, his hearing became impaired
and he lost the power of speech.
PRESUMPTION / GENERAL RULE – rebuttable - Owing to the paralysis of certain muscles, his head fell to
Presumption of Sanity under Art800. one side and saliva ran from his mouth. However, he
TWO EXCEPTIONS – when there is a rebuttable retained the use of his right hand, and was able to write
presumption of Insanity – fairly well. Through the medium of signs he was able to
indicate his wishes to his wife and to other members of his
1. When testator, one month or less before the family.
execution of the will, was publicly known to be - At the time of the execution of the will, there were four
insane testamentary witnesses.
2. When the testator executed the will after being - It appears that the testator made notes disposition he
placed under guardianship or ordered desires to make his property, from which his attorney
committed, in either case, for insanity under prepared a formal will which was then read to the testator,
who assented to it section by section. After which the whole
Rules 93 and 101 of the RoC, and before said
will is read in a loud voice and is then signed by the testator
order has been lifted.
and four witnesses in the presence of each other.
The time for determining mental capacity Whether the will was executed according to the formalities and
time of execution of the will and no other temporal requirements of the law.
criterion is to be applied - YES. The SC held that the requirements of the Code of Civil
Procedure were fully complied with.
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- YES. The is no sufficient evidence to overthrow the legal WON the will dated 11 August 1909 executed by Tomasa was
presumption of a sound mind and disposing memory. valid.
- Witnesses testified that, at the time of the execution of the - YES.
will, the testator was in his right mind and that although 1. A plan of the room where the will was signed was
serious ill, he indicated by the movements of his head what presented. It was shown that from the bed where
his wishes were. Tomasa was lying, it was possible for her to see the
- The evidence shows that the writing and the execution of the table on which the witnesses signed the will.
will occupied a period of several hours and that the testator 2. As regard the issue of the soundness of Tomasa’s
was taking an active part in all the proceedings. mind when she executed the will, SC held that in
- The SC held that that the testimony of the two physicians do view of the conflicting testimonies and the findings of
not in any way strengthens the argument that the testator the lower court, it upheld the conclusion of the lower
was mentally incapacitated. The SC said that their testimony court that Tomasa had clear knowledge and knew
only confirms the fact that the testator had been afflicted with what she was doing at the time she signed the will.
paralysis but neither of them attempted to state what the 3. Although it was contended that the signature of
mental condition of the testator was at the time he executed Tomasa in the latter will varied from the one found in
the will in question. the earlier will, SC held that if Tomasa signed any
- The SC held that it cannot conclude from this that he was portion of her name to the will, with the intention to
wanting of the necessary mental capacity to dispose of his sign the same, that will amount to a signature. The
property by will. lower court found that no undue influence was
- The SC affirmed the order probating the will. exercised over Tomasa when she executed the will.
- In our jurisdiction, the presumption of law is in favor of the The findings of the lower court, which had the
mental capacity of the testator and the burden is upon the opportunity to see, hear and note the witnessed
contestants of the will to prove the lack of testamentary during examination is accorded great weight. SC
capacity. upheld the lower court’s findings.
- When a testator has never been adjudged insane by a court 4. On the issue of the execution of an earlier will, the
of competent jurisdiction, there is a presumption of mental SC held that the execution of a former will is no proof
soundness which must be overcome by competent proof. that she did not execute a later one. She had the
perfect right to alter, modify, or revoke any and all of
- To constitute a sound mind and disposing memory, it is not
her former wills and to make a new one.
necessary that the mind shall be wholly unbroken, - While it is an absolute rule that one who makes a will must
unimpaired, and unshattered by disease or otherwise, or sign the same in the presence of the witnesses and the
that the testator be in full possession of all his reasoning witnesses must sign in the presence of each other and of the
faculties. testator, yet the actual seeing of the signatures made ins not
- Perfect soundness of mind is not essential to testamentary necessary.
capacity. - It is sufficient if the signatures are made where it is possible
- Failure of memory is not sufficient unless it be total or for the necessary parties, if they desire to see, may see the
extends to his immediate family or property. signatures placed upon the will.
- The question is that, were his mind and memory sufficiently - A signature containing only the first name is nevertheless a
sound to enable him to know and understand the business signature and is sufficient to satisfy the requirements of the
in which he was engaged at the time when he executed his law.
will. - If the writing of a mark simply upon a will is sufficient
indication of the intention of the person to make and execute
Yap Tua v. Yap Ca Kuan & Yap Ca Llu a will, then certainly the writing of a portion or all of the name
should be accepted as a clear indication of an intention to
- Yap Tua, through a representative, filed a petition for the execute the will.
probate of the will of Tomasa Elizaga Yap Caong, the
deceased. Samson v. Tan
- The will dated 11 August 1909 was signed by Tomasa and 4
other witnesses. - The Testator was suffering from diabetes and had been in a
- After due hearing, the judge ordered that Tomasa’s will be comatose condition for several days prior to his death. He
allowed and admitted to probate. died at about 8:00pm and the will is alleged to have been
- Later, Yap Ca Kuan and Yap Ca Llu (the minors) appeared executed in the noon of the same day.
and were interested in the matters of the will. A guardian ad - Oppositor in this case alleges that at the time of the
litem (Gabriel) was then appointed. execution of the will, testator is not of sound and disposing
- Gabriel then filed a petition alleging that the will admitted to mind.
probate was null because:
1. It was not executed in accordance with the law Whether or not testator is of unsound mind
(specifically with the signing of the witnesses) - SC held that he was not. Although the attending physician
2. Tomasa was not mentally capacitated to execute the testified that he was in a state of coma, he also stated that
will due to her sickness coma has varying degrees of coma ad in its lighter forms the
3. Tomasa’s signature was obtained through fraud and patient may be aroused and have lucid intervals.
illegal influence - The petitioner presented 5 witnesses who all testified that he
4. Tomasa had earlier executed another will dated 06 was conscious and could her and understand what was said
August 1909 with all the formalities required by law to him and was able to indicate his desires. He could speak
- A rehearing was then ordered by the judge. distinctly or move his head to answer questions. This was
given greater weight by the court as against the two
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witnesses presented by oppositor, one of which was the and to comprehend the manner in which the instrument will
oppositor’s mother who was not considered as a distribute his property.
disinterested witness.
- Mere professional speculation cannot prevail over the Sancho v. Abella
positive statements of 5 apparently credible witnesses
whose testimony does not seen unreasonable. - Matea Abella, sometime prior to her death, asked her niece
to accompany her to a reputable physician for consultation.
Torres v. Lopez - During her visit, Matea stayed in one of the convents in San
Fernando La Union.
- The controversy on this case is centered on the allowance - Said physician, Dr. Antonio Querol, diagnosed her to be
or the disallowance of the will of Tomas Rodriguez. suffering from dyspepsia and cancer of the stomach.
- Vicente Lopez acted as the administrator of the properties of - As such, Matea, immediately asked her attorney to come to
the decedent. A year before Tomas’s death, the latter was the convent so that she may make her will. The will was
also subjected to a guardianship proceeding, where the accordingly drafted and signed by the testator in the
court found the decedent incapacitated to take care of presence of the witnesses.
himself and his property. For this reason, Vicente was - Months after, Matea died.
named also as the guardian of the deceased. - The opponent claims that Matea did not have capacity to
- By virtue of the court’s finding, the decedent was committed make the will at the time she executed the same as Mate
in the Philippine General Hospital where he eventually died. was deaf, has defective eyesight and is suffering from
- Tomas expressed his desire to make a will during one of the severe impairment of memory.
visits of Santiago Lopez and accordingly, they
commissioned Atty. Mina to ascertain the wishes of the Whether or not Matea had testamentary capacity
decedent. - The Sc held in the affirmative.
- 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.
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
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Ryan Quan 24
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- A will written in a language that is not known to the testator The testator or the person requested by
is void. him to write his name and the instrumental
witnesses of the will, shall also sign, as
Abangan v. Abangan
aforesaid, each and every page thereof,
- The CFI admitted to probate Ana Abangan’s will. except the last, on the left margin, and all the
- The said document, duly probated as Ana Abangan’s will, pages shall be numbered correlatively in
consists of two sheets, the first of which contains all the letters placed on the upper part of each page.
disposition of the testatrix, duly signed at the bottom of The attestation clause shall state the
Martin Montalban (in the name and under the direction of the number of pages used upon which the will is
testatrix) and by 3 witnesses.
written, and the fact that the testator signed
- The second sheet contains only the attestation clause duly
signed at the bottom by the three instrumental witnesses. the will an every page thereof, or caused
- Neither of these sheets is signed on the left margin by the some other person to write his name, under
testatrix and the three witnesses, nor numbered by letters. his express direction, in the presence of the
instrumental witnesses, and that the latter
Whether the absence of the signature on the left margin of will witnessed and signed the will and all the
invalidate Abangan’s will.
pages thereof in the presence of the testator
- NO. The SC held that in a will consisting of two sheets, the
first of which contains all the testamentary dispositions and and of one another.
is signed at the bottom by the testator and 3 witnesses and If the attestation clause is in a language
the second contains only the attestation clause and is not known to the witnesses, it shall be
signed also at the bottom by the 3 witnesses, it is not interpreted to them.
necessary that both sheets be further signed on their
margins by the testator and the witnesses, or be paged.
ART. 806. Every will must be acknowledged
Whether the failure to number by the letters will invalidate the before a notary public by the testator and the
will of Abangan. witnesses. The notary public shall not be
- NO. In requiring that each and every page of a will must be required to retain a copy of the will, or file
numbered correlatively in letters placed on the upper part of another with the Office of the Clerk of Court.
the sheet, the object of the law is to know whether any sheet
of the will has been removed. SPECIAL REQUIREMENTS FOR ATTESTED /
- But, when all the dispositive parts of a will are written on one
ORDINARY / NOTARIAL WILLS -
sheet only, the object of the statute disappears because the
1. Subscribed by the testator or his agent in
removal of this single sheet, although unnumbered, cannot
be hidden.
his presence and by his express direction at
the end thereof, in the presence of the
Whether the will was written in the dialect that the testatrix witnesses
knew. • Subscribed by the testator – To subscribe
- YES. The circumstances appearing in the will itself that the denotes writing, more precisely to write
same was executed in Cebu and in the dialect of this locality under. To Sign means to place a
where the testatrix was a neighbor is enough, in the distinguishing mark.
absence of any proof to the contrary, to presume that she • Thus signing has a broader meaning than
knew this dialect in which the will was written. subscribing. Not every signature is a
- The testator’s signature is not necessary in the attestation subscription and not every distinguishing
clause because this, as its name implies, appertains only to mark is a writing.
the witnesses and not to the testator.
- In requiring the signature on the margin, the statute took into
consideration the case of a will written on several sheets • THUMBMARK AS SIGNATURE
and must have referred to the sheets which the testator and a) Is the placing of the testator’s
the witnesses do not have to sign at the bottom. thumbprint a signature within the
contemplation of the article? YES, on the
Mendoza v Pilapil authority of Payad v. Tolentino and
Matias v. Salud, the testator’s thumbprint
is always a valid and sufficient signature
ART. 805. Every will, other than a holographic for the purpose of complying with the
will, must be subscribed at the end thereof by requirement of Art805.
the testator himself or by the testator’s name b) There is no basis for limiting the
validity of thumbprints only to cases of
written by some other person in his presence,
illness or infirmity.
and by his express direction, and attested
and subscribed by three or more credible • A CROSS AS SIGNATURE – a sign of the
witnesses in the presence of the testator and cross placed by the testator does not comply
of one another. with the statutory requirement of signature,
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Ryan Quan 25
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UNLESS it is the testator’s usual manner of 2. Attested and subscribed by at least three
signature or one of his usual styles of signing. credible witnesses in the presence of the
testator and of one another.
• SIGNING BY AN AGENT OF THE • Two distinct things are required of the
TESTATOR – witnesses here –
Two Requisites a) Attesting – which is the act of
i. Must sign in the testator’s witnessing
presence, and b) Subscribing – which is the act of
ii. By the testator’s express direction signing their names in the proper
places of the will
What the agent must write – need not be
alleged in the will itself that agent wrote • Both must be done.
the testator’s name under the latter’s • May the witness, like the testator, affix his
express direction thumbmark in lieu of writing his name? Art820
requires a witness to be able to read and
The essential thing, for validity, is that the write, but this does not answer the query
agent write the testator’s name, nothing definitively. The point is debatable.
more. It would be a good thing, but not • Signing in the presence of the testator and
required, for the agent to indicate the fact of one another - Actual seeing is not required,
of agency or authority. but the ability to see each other [the testator
and the witnesses] by merely casting their
• May the agent be one of the attesting eyes in the proper direction.
witnesses?
a) If there are more than 3 witnesses – 3. Testator, or his agent, must sign every
YES page, except the last, on the left margin in the
b) If there are only 3 witnesses – presence of the witnesses
Uncertain. • The last page need not be signed by the
testator on the margin because, being the
page where the end of the will is, it already
contains the testator’s signature.
• There is a Mandatory and a Directory part
• SIGNING AT THE END to this requirement –
If the will contains only dispositive a) MANDATORY – the signing on every
provisions, there will be no ambiguity as page in the witnesses’ presence
to where the end of the will is. If however b) DIRECTORY – place of the signing,
the will contains non-dispositive the left margin, the signature can be
paragraphs after the testamentary affixed anywhere on the page.
dispositions, one can refer to two kinds of • Signing in the presence - Actual seeing is
end – not required, but the ability to see each other
1. Physical End – where the writing [the testator and the witnesses] by merely
stops casting their eyes in the proper direction
2. Logical End – where the last
testamentary disposition ends 4. The witnesses must sign every page,
except the last, on the left margin in the
Signing at either the physical end or presence of the testator and of one another.
logical end is equally permissible. The
non-dispositive portions are not essential • Order of Signing – immaterial, provided
parts of the will. everything is done in a single transaction.
However, if the affixation of the signatures is
Signing before the end invalidates not done in several transactions, then it is
only the dispositions that come after, but required for validity that the TESTATOR affix
the entire will, because then one of the his signature ahead of the witnesses.
statutory requirements would not have
been complied with. 5. All pages numbered correlatively in letters
on the upper part of each page.
• SIGNING IN THE PRESENCE OF • Mandatory and Directory part
WITNESSES a) MANDATORY – pagination by means
Actual seeing is not required, but the of a conventional system. The
ability to see each other [the testator and purpose is to prevent insertion or
the witnesses] by merely casting their removal of pages
eyes in the proper direction. b) DIRECTORY – pagination in letters
on the upper part of each page.
•
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6. Attestation clause, stating: Par2 Art805 – No statement that the testator and
a) Number of pages of the will the witnesses must sign every page in one
b) Fact that the testator or his agent another’s presence.
under his express direction signed the • But these two things are required to be
will and every page thereof, in the stated in the attestation clause.
presence of the witnesses Conclusion is that they should be
c) The fact that the witnesses complied with as requirements.
witnessed and signed the will and every
page thereof in the presence of the
Attestation clause is not required to state that the
testator and of one another. agent signed in the testator’s presence - a
circumstance mandated by the 1st and 2nd
• The attestation clause is the affair of paragraphs of the article.
witnesses therefore, it need not be signed by
the testator. Indication of Date – there is no requirement that an
• The signatures of the witnesses must be attested will should be dated, unlike a holographic will.
at the BOTTOM of the attestation clause.
• If the entire document consists only of 2 CASE
sheets, the first containing the will and the Payad v. Tolentino
second the attestation clause, there need not
be any marginal signatures at all [Abangan v. - The lower court denied probate on the will of deceased
Abangan] Tolentino on the ground that the attestation clause was not
• The fact that the attestation clause was in conformity with the requirements of law in that it is not
written on a separate page has been held to stated therein that the testatrix caused Atty. Almario to write
her name at her express direction.
be a matter of minor importance and
- Whether or not the will should be denied probate.
apparently will not affect the validity of the
- SC held that it should not be denied because:
will.
1. The deceased placed her thumb mark on each and
every page of the will and the attorney merely wrote
7. Acknowledgement before a notary public. her name to indicate the place where she placed her
• Code does not require that the signing of thumb mark. Thus, the attorney did not really sign for
the testator, witnesses and notary should be her.
accomplished in one single act. 2. It was not necessary that the attestation clause
• All that is required in this article is that the should state that the testatrix requested Atty.
testator and witnesses should avow to the Alamario to sign her name since she signed it in
notary the authenticity of their signatures and accordance with law.
the voluntariness of their actions in executing A statute requiring a will to be signed is satisfied if the
the testamentary disposition. [Javellana v. signature is made by the testator’s mark.
Ledesma]
a) Ratio – Certification of
acknowledgement need not be signed by
notary in the presence of testator and Matias v. Salud
witnesses.
b) Art806 does not require that testator - The CFI denied probate of the will of Gabina Raquel.
and witnesses must acknowledge on the - It must be noted that Gabina Raquel was suffering from
same day that it was executed. herpes zoster that afflicted the right arm and shoulder of the
c) Logical Inference – neither does the testatrix, which made writing difficult and a painful act.
article require that testator and witnesses - Thus, upon the insistence of the attorney, Gabina attempted
must acknowledge in one another’s to sign, but since it was so painful she just managed to
presence. If acknowledgement is done thumbmarked the foot of the document and the left margin at
by testator and witness separately, all of each page.
them must retain their respective - The parties opposing the probate of the will contended that
capacities until the last one has the will was void due to the irregularities in the execution
acknowledged. thereof.
- One of the points raised by the oppositors was that the
• Notary cannot be counted as one of the finger mark can not be regarded as the decedent’s valid
attesting witnesses. signature as it does not show distinct identifying ridgelines.
• Affixing of documentary stamp is not - And since the finger mark was an invalid signature, there
required for validity. must appear in the attestation clause that another person
wrote the testator’s name at his request.
Some Discrepancies
Par1 Art805 – No statement that the testator must Whether or not the will was valid
- The SC held that the will was valid.
sign in the presence of the witnesses
- As to the clarity of the ridge impressions, it is so dependent
on aleatory requirements as to require dexterity that can be
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expected of very few persons; testators should not be presence of 3 other witnesses and that they attested and
required to possess the skill of trained officers. subscribed it in her presence and in the presence of one
- And as to the validity of the thumbprints as signature, the SC another. That is all the statute requires.
held that it has been held in a long line of cases that a - The cases relied upon by the oppositors are not in point. In
thumbprint is always a valid and sufficient signature for the those cases, the reason for the invalidation of the wills
purpose of complying with the requirement of the article. concerned was that the persons instructed to sign for the
- Furthermore, the validity of thumbprints should not be limited testator signed their own names instead of the names of the
in cases of illness or infirmity. testators in each case.
- A thumbprint is considered as a valid and sufficient - The will must be in writing and signed by the testator, or the
signature in complying with the requirements of the article. testator’s name written by some other person in his
presence, and by his express direction, and attested and
Garcia v. Lacuesta subscribed by 3 or more credible witnesses in the presence
of the testator and of each other.
- This case purports to the validity of the will executed by - The fact that the testator signed the will or that he caused it
Antero Mercado. to be signed by another person at his express direction and
- The will is said to be irregularly execute as the attestation that the same was signed by the witnesses must be included
clause did not mention that it was Atty. Javier who signed for in the attestation.
the decedent under the latter’s express direction.
- The other party however argued that such fact need not be Nera v. Rimando
mentioned because although Atty. Javier wrote the name of
Mercado, Mercado nevertheless put a cross and that such - Only questioned raised by the evidence in this case as to
cross amounts to a signature by the decedent himself. the due execution of the instrument propounded as a will is
whether the one of the subscribing witnesses was present in
Whether or not the will was valid the small room where the will was executed at the time
- The SC held that it was not. when the testator and the other subscribing witnesses
- Although there have been cases considering marks, such as attached their signatures.
a cross, as sufficient signature, there is nothing in the
records that shows that Mercado usually uses a cross as his WON, the will was validly witnessed by one of the subscribing
signature. witnesses to make the will valid.
- As such, the will was disallowed. - Yes. The subscribing witness validly witnessed the signing.
- Marks, such as a cross, can only be considered as a - Majority of the members of the court is of the opinion that the
signature if there is showing that the decedent was subscribing witness was indeed in the small room to be able
accustomed to using such mark as signature. to observe the signing of the will be the testator and other
subscribing witnesses.
- The trial court decided when it said that the fact that one of
the alleged witnesses signed the instrument in the outer
room when the others were inside would not be sufficient in
itself to invalidate the execution of the will.
- But this Court is of the opinion that had this subscribing
witness been proven to have been in the outer room, it
would have been invalid as a will.
- But it is especially to be noted that the position of the parties
with relation to each other at the moment of the subscription
of each signature must be such that they may see each
Barut v. Cabacungan other sign if they choose to do so.
- It is enough that when the witness, if he chose to look at the
- Barut applied for the probate of the last will and testament of actual signing he could have done so by just merely casting
Maria Salomon. his eyes in the proper direction, such would be considered
- In the will, Salomon revoked all former wills she made. She already as a proper witnessing of the said execution of the
also stated that being unable to read and write, she will.
instructed Concepcion and Inoselda to read the will to her. - However, to extend to extend this doctrine further would
She also instructed Agayan to sign her (Salomon) name to it open the door to the possibility of all manner of fraud,
as testator. substitution and the like and would defeat the purpose for
- The probate court found that the will was not entitled to which this particular condition is prescribed in the code as
probate because the signed name of the testatrix on her one of the requisites in the execution of a will.
behalf looked more like the handwriting of one of the other - Hence the will is to be admitted to probate.
witnesses that that of the person whose handwriting it was - Actual seeing is not required, but the ability to see each
alleged to be. other, i.e. the testator and the witnesses, “by merely casting
eyes in the proper direction.”
WON the will was valid. Specifically, is the signature of the
person instructed by the testator to sign the will valid. Icasiano v. Icasiano
- YES. With respect to the validity of the will, it is unimportant
whether the person who writes the name of the testatrix - Josefa Villacorte died in Manila on September 12, 1958; on
signs his name or not. June 2, 1956, Villacorte executed a last will and testament in
- The important thing is that it clearly appears that the name of duplicate at the house of her daughter Mrs. Felisa Icasiano
the testatrix was signed at her express direction in the
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before three instrumental witnesses, namely; attorneys Justo made by the attesting witnesses, and it must necessarily
P. Torres, Jr. and Jose V. Natividad, and Dr. Vinicio B. Diy. bear their signatures. An unsigned attestation clause cannot
- The records show that the original of the will, consists of five be considered as an act of the witnesses, since the omission
pages, and while signed at the end and in every page, it of their signatures at the bottom thereof negatives their
does not contain the signature of one of the attesting participation.
witnesses, Atty. Jose V. Natividad, on page three (3) thereof; - DISSENT by Bautista: The liberal trend of the NCC in the
but the duplicate copy attached to the amended and interpretation of wills should not be overlooked. In case of
supplemental petition is signed by the testatrix and her three doubt, the interpretation that would have the effect of
attesting witnesses in each and every page. preventing intestacy prevails.
- Witness Natividad, who testified on his failure to sign page - Cruz Dissent by Tuason: The law on wills does not provide
three (3) of the original, admits that he may have lifted two that the attesting witness should sign the clause at the
pages instead of one when he signed the same, but affirmed bottom. In the absence of the such provision, there is no
that page three (3) was signed in his presence. reason why signatures on the margin are not good.
- An unsigned attestation clause cannot be considered as an
Whether or not the will is void (since one of the pages in the act of the witnesses, since the omission of their signatures at
original copy was not signed by one of the witnesses) the bottom thereof negatives their participation.
- NO. The inadvertent failure of one witness to affix his
signature to one page of a testament, due to the Cruz v. Villasor
simultaneous lifting of two pages in the course of signing, is
not per se sufficient to justify denial of probate. - This is a petition for review on certiorari on the judgment of
- Impossibility of substitution of this page is assured not only the CFI allowing the probate of the will of the late Valente
the fact that the testatrix and two other witnesses did sign Cruz.
the defective page, but also by its bearing the coincident - The surviving spouse of Valente opposed the allowance of
imprint of the seal of the notary public before whom the the will alleging that the will was executed through fraud,
testament was ratified by testatrix and all three witnesses. deceit, misrepresentation and undue influence; that the said
- The law should not be so strictly and literally interpreted as instrument was executed without the testator having been
to penalize the testatrix on account of the inadvertence of a fully informed of the contents thereof, particularly as to what
single witness over whose conduct she had no control, properties he was disposing; and that the supposed will was
where the purpose of the law to guarantee the identity of the not executed in accordance with law.
testament and its component pages is sufficiently attained, - It appears that of the 3 instrumental witnesses, one of them,
no intentional or deliberate deviation existed, and the is at the same time the Notary Public before whom the will
evidence on record attests to the full observance of the was supposed to have been acknowledged.
statutory requisites. Otherwise, witnesses may sabotage the
will by muddling or bungling it or the attestation clause". Whether the supposed last will and testament of Valente Cruz
- That the failure of witness Natividad to sign page three (3) was executed in accordance with law, particularly Articles 805
was entirely through pure oversight is shown by his own and 806 of the NCC, the first requiring at least 3 credible
testimony as well as by the duplicate copy of the will, which witnesses to attest and subscribe to the will, and the second
bears a complete set of signatures in every page. The text of requiring the testator and the witnesses to acknowledge the
the attestation clause and the acknowledgment before the will before a notary public.
Notary Public likewise evidence that no one was aware of - NO. The notary public before whom the will was
the defect at the time. acknowledge cannot be considered as the third instrumental
- The law should not be so strictly and literally interpreted witness since he cannot acknowledge before himself his
where the purpose of the law to guarantee the identity of the having signed the will.
testament and its component pages is sufficiently attained. - If the third witness were the notary public himself, he would
have to avow, assent, or admit his having signed the will in
Notes on Icasiano – Icasiano holding cannot, and should not, be
taken as a departure from the rule that the will should be signed by
from of himself. This cannot be done because he cannot
the witnesses on every page. The carbon duplicate, it will be split his personality into two so that one will appear before
noted, was regular in all respects. A cavalier disregard of the the other to acknowledge his participation in the making of
formal requirements of wills, in reliance on Icasiano, is not the will.
recommended. - To allow the notary public to act as third witness, or one of
the attesting and acknowledging witnesses, would have the
Cagro v. Cagro effect of having only two attesting witnesses to the will which
would be in contravention of the provisions of Article 805
- The probate of the will allegedly executed by Vicente Cagro requiring at least 3 credible witnesses to act as such and of
who died in Laoangan, Pambujan, Samar, is being opposed Article 806 which requires that the testator and the required
on the ground that the will is fatally defective, because its number of witnesses must appear before the notary public to
attestation clause is not signed by the attesting witnesses. acknowledge the will.
- There is no question that the signature of the 3 witnesses to - The SC declared the last will of Valente invalid.
the will do not appear at the bottom of the attestation clause, - The notary public before whom the will was acknowledged
although the page containing the same is signed by the cannot be considered as the third instrumental witness since
witnesses on the left hand margin. he cannot acknowledge before himself his having signed the
will.
Whether the will is fatally defective. - To acknowledge before means to avow; to own as
- Yes. The attestation clause is a “memorandum of the facts genuine, to assent, to admit, and before means in front or
attending the execution of the will” required by law to be preceding in space or ahead of.
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- The function of a notary public is, among others, to guard subscribing witnesses, and again, by the
against any illegal or immoral arrangements. This function notary public before whom the will is
would be defeated if the notary public were one of the
acknowledged.
attesting witnesses.
Whether or not it should be invalidated due to the attestation - This case pertains to the will of the late Gliceria Avelino del
clause’s failure to state the number of pages used in writing the Rosario.
will. - Upon the decedent’s death, her niece Consuelo Precilla,
- Attestation consists in witnessing the testator’s execution of filed a petition for the probate of the decedent’s holographic
the will in order to see and take note mentally that those will and for the latter’s appointment as the special
things are done which the statute requires for the execution administratrix of the decedent’s estate.
of a will and that the signature of the testator exists as a fact. - Witnesses presented by the proponents of the will testified
- Subscription is the signing of the witnesses’ names upon the that the decedent was of sound mind when she executed
same paper for the purpose of identification of such paper the will, and that the decedent first read the will silently
as the will which was executed by the testator. before she signed it.
- Oppositors of the will however contended that it was
physically impossible for the decedent to have read the will
ART. 807. If the testator be deaf, or a deaf-mute, as she had a severely impaired eyesight as testified by Dr.
he must personally read the will, if able to do Jesus Tamesis.
so; otherwise, he shall designate two persons - The physician found out on March 1960 that the decedent
had a cataract on the left eye and her right eye also had
to read it and communicate to him, in some difficulty seeing printed pages.
practicable manner, the contents thereof. - The physician further testified that despite the operation and
removal of the cataract and the decedent’s being fitted with
ART. 808. If the testator is blind, the will shall be aphakic lens, the latter’s vision remained capable of viewing
read to him twice; once by one of the
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Ryan Quan 30
SUCCESSION REVIEWER 1ST SEM 2006-2007
only distant objects and is not capable of reading printed Whether or not notarial will of Brigido Alvarado should be
articles. admitted to probate despite allegations of defects in the
execution and attestation thereof as testator was allegedly
Whether or not the decedent is considered “blind” pursuant to blind at the time of execution and the double-reading
the provisions of Art 808 requirement under Art. 808 of the NCC was not complied with.
- Yes. The SC held that for all intents and purposes of the - YES. The spirit behind the law was served though the letter
rules on probate, the decedent is like a blind testator, and was not. Although there should be strict compliance with the
the due execution of her will would have required faithful substantial requirements of law in order to insure the
observance of the provisions of Art 808 of the CC. authenticity of the will, the formal imperfections should be
- Also, The SC found it worthy to mention the fact that that the brushed aside when they do not affect its purpose and
will was executed without any regard for the defective vision which, when taken into account, may only defeat the
of the decedent. The testament was cramped in a single testator’s will.
page and was abundant with typographical errors. This only - Cesar Alvardo was correct in asserting that his father was
strengthens the proposition that the decedent could not have not totally blind (of counting fingers at 3 feet) when the will
read or understood the alleged testament. and codicil were executed, but he can be so considered for
purposes of Art. 808.
Whether or not the will was duly executed - That Art. 808 was not followed strictly is beyond cavil.
- No. Considering that the testator is within the term “blind” as - However, in the case at bar, there was substantial
contemplated under Art 808, the due execution of the compliance where the purpose of the law has been satisfied:
decedent’s will would have required the reading of the will that of making the provisions known to the testator who is
twice (once by one of the witnesses, and once by the blind or incapable of reading the will himself (as when
notary). he is illiterate) and enabling him to object if they do not
- However, no such reading was proved or shown in this accord with his wishes.
case. Thus, the will should be declared invalid. - Rino read the testator’s will and codicil aloud in the presence
- The rationale behind the reading of the will to the blind of the testator, his three instrumental witnesses, and the
testator is to make the provisions thereof known to him, so notary public.
that he may be able to object if they are not in accordance - Prior and subsequent thereto, the testator affirmed, upon
with his wishes. being asked, that the contents read corresponded with his
- A person who is not blind but is similarly incapacitated to instructions.
read the will is within the ambit of Art 808. - Only then did the signing and acknowledgment take place.
- There is no evidence that the contents of the will and the
Alvarado v. Gaviola, Jr. codicil were not sufficiently made known and communicated
to the testator.
- On 5 November 1977, 79-year old Brigido Alvarado - With four persons, mostly known to the testator, following
executed a notarial will entitled “Huling Habilin” wherein he the reading word for word with their own copies, it can be
disinherited an illegitimate son, petitioner Cesar Alvarado, safely concluded that the testator was reasonably assured
and expressly revoked a previously executed holographic that what was read to him were the terms actually appearing
will at the time awaiting probate before the RTC of Laguna. on the typewritten documents.
- According to Bayani Ma. Rino, private respondent, he was - Art. 808 of the New Civil Code provides: “If the testator is
present when the said notarial will was executed, together blind, the will shall be read to him twice; once, by one of the
with three instrumental witnesses and the notary public, subscribing witnesses, and again, by the notary public
where the testator did not read the will himself, suffering as before whom the will is acknowledged.”
he did from glaucoma. - The rationale behind the requirement of reading the will to
- Rino, a lawyer, drafted the eight-page document and read the testator if he is blind or incapable of reading the will to
the same aloud before the testator, the three instrumental himself (as when he is illiterate), is to make the provisions
witnesses and the notary public, the latter four following the thereof known to him, so that he may be able to object if
reading with their own respective copies previously they are not in accordance with his wishes.
furnished them. - Although there should be strict compliance with the
- Thereafter, a codicil entitled “Kasulatan ng Pagbabago ng substantial requirements of law in order to insure the
Ilang Pagpapasiya na Nasasaad sa Huling Habilin na May authenticity of the will, the formal imperfections should be
Petsa Nobiembre 5, 1977 ni Brigido Alvarado” was executed brushed aside when they do not affect its purpose and
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
was read in the same manner as with the previously - See Abangan v. Abangan.
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
and old age; that the will was executed under duress, or
influence, defects and imperfections in the
influence of fear or threats; that it was procured by undue form of attestation or in the language used
pressure and influence on the part of the beneficiary; and therein shall not render the will invalid if it is
that the signature of the testator was procured by fraud or proved that the will was in fact executed and
trick.
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attested in substantial compliance with all the proceedings for the probate of the will had to be heard and
requirements of Article 805. resolved first.
- In the course of the proceedings, petitioners opposed to the
allowance of the testator’s will on the ground that on the
According to JBL Reyes, “Liberalization Running Riot,” alleged date of its execution, the testator was already in
instead a possible rewording would be – poor state of health such that he could not have possibly
In the absence of bad faith, forgery, or executed the same. Also the genuineness of the signature of
fraud, or undue and improper pressure and the testator is in doubt.
influence, defects and imperfections in the - On the other hand, one of the attesting witnesses and the
form of attestation or in the language used notary public testified that the testator executed the will in
therein shall not render the will invalid if question in their presence while he was of sound and
such defects and imperfections can be disposing mind and that the testator was in good health and
supplied by an examination of the will itself was not unduly influenced in any way in the execution of his
and it is proved that the will was in fact will.
executed and attested in substantial - Probate court then rendered a decision declaring the will in
compliance with all the requirements of question as the last will and testament of the late Mateo
Article 805. Caballero.
- CA affirmed the probate court’s decision stating that it
Examples substantially complies with Article 805. Hence this appeal.
1. A failure by the attestation clause to state that
the testator signed every page can be liberally WON, the attestation clause in the will of the testator is fatally
defective or can be cured under the art. 809.
construed, since that fact can be checked by a
- No. It does not comply with the provisions of the law.
visual examination.
- Ordinary or attested wills are governed by Arts. 804 to 809.
2. Failure by the attestation clause to state that The will must be acknowledged before a notary public by the
the witnesses signed in one another’s testator and the attesting witnesses. The attestation clause
presence should be considered a FATAL need not be written in a language known to the testator or
FLAW since the attestation clause is the only even to the attesting witnesses.
textual guarantee of compliance. - It is a separate memorandum or record of the facts
The rule is that omission which can be supplied by an surrounding the conduct of execution and once signed by
examination of the will itself, without the need of the witnesses it gives affirmation to the fact that compliance
resorting to extrinsic evidence, will not be fatal and, with the essential formalities required by law has been
correspondingly, would not obstruct the allowance to observed.
probate of the will being assailed. - The attestation clause, therefore, provides strong legal
However, those omissions which cannot be supplied guaranties for the due execution of a will and to insure the
except by evidence aliunde would result in the authenticity thereof.
invalidation of the attestation clause and ultimately, of - It is contended by petitioners that the attestation clause in
the will itself. the will failed to specifically state the fact that the attesting
witnesses witnessed the testator sign the will and all its
CASES pages in their presence and that they, the witnesses,
likewise signed the will and every page thereof in the
Caneda v. CA
presence of the testator and of each other. And the Court
agrees.
- On December 5, 1978, Mateo Caballero, a widower without
- The attestation clause does not expressly state therein the
any children and already in the twilight years of his life,
circumstance that said witnesses subscribed their respective
executed a last will and testament at his residence before 3
signatures to the will in the presence of the testator and of
witnesses.
each other.
- He was assisted by his lawyer, Atty. Emilio Lumontad.
- The phrase, “and he has signed the same and every page
- In the will, it was declared that the testator was leaving by
thereof, on the space provided for his signature and on the
way of legacies and devises his real and personal properties
left hand margin,” obviously refers to the testator and not the
to several people all of whom do not appear to be related to
instrumental witnesses as it is immediately preceded by the
the testator.
words” as his last will and testament.”
- 4 months later, Mateo Caballero himself filed a case seeking
- Clearly lacking is the statement that the witnesses signed
the probate of his last will and testament, but numerous
the will and every page thereof in the presence of the
postponements pushed back the initial hearing of the
testator and of one another. That the absence of the
probate court regarding the will.
statement required by law is a fatal defect or imperfection
- On May 29, 1980, the testator passed away before his
which must necessarily result in the disallowance of the will
petition could finally be heard by the probate court.
that is here sought to be probated.
- 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
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- Therefore, the probate of the will is set aside and the case - Pilar Achacoso filed an alternative petition for the probate of
for the intestate proceedings shall be revived. a pervious will praying that if the will submitted by the widow
- Article 809 cannot be used to cure the defects of the will be rejected, the other will be admitted in lieu thereof.
when it does not pertain to the form or language of the will. - The previous will names Pilar Achacoso as one of the heirs,
This is because there is not substantial compliance with a statement absent in the 2nd will.
Article 805.
- Pilar opposes the probate of the 2nd for lack of attestation
Cases for Arts. 807-809 clause, or if there be one that it is not signed by the
instrumental witnesses, a defect which invalidates the will.
Gil v. Murciano - The will winds up with the ff. clause: In witness whereof, I
sign this testament or last will….in the presence of the 3
- The CFI of Manila admitted to probate the alleged will and witnesses…
testament of the deceased Carlos Gil. The oppositor Pilar Gil
Vda. de Murciano appealed to the SC, arguing that the will Whether the attestation clause is valid.
was void since the attestation clause thereof does not state - Yes. The only anomaly is that it appears to be an attestation
that the alleged testator signed the will. It declares only that made by the testator himself more than by the instrumental
it was signed by the witnesses. witnesses. This, however, is not serious or substantial as to
affect the validity of the will, it appearing that right under the
Whether or no the will is valid. signature of the testator, there appear the signatures of the 3
- NO. This is a fatal defect, for the precise purpose of the instrumental witnesses.
attestation clause is to certify that the testator signed the will, - Instrumental witness is one who takes part in the execution
this being the most essential element of the clause. of an instrument or writing, he does not merely attest to the
- Without it there is no attestation at all. It is said that the court signature of the testator but also to the proper execution of
may correct a mere clerical error. the will. The fact that the 3 witnesses have signed the will
- This is too much of a clerical error for it affects the very immediately under the signature of the testator, show that
essence of the clause. Alleged errors may be overlooked or they have in fact attested not only the genuineness of his
corrected only in matters of form which do not affect the signature but also to the due execution of the will as
substance of the statement. embodied in the attestation clause.
- Correction may not be cured by inference considering the - The object of the solemnities surrounding the execution of
clear, unequivocal, language of the statute as to how the the wills is to close the door against bad faith and fraud, to
attestation clause should be made. It is to be supposed that avoid substitution of the wills and testament and to
the drafter of the alleged will read the clear words of the guarantee their truth and authenticity. Therefore the laws on
statute when he prepared it. For the court to supply alleged this subject should be interpreted in such a way as to attain
deficiencies would be against the evident policy of the law. these primordial ends. But on the other hand also one must
- In adopting liberal construction of a will, evidence aluinde is not lose sight of the fact that it is not the object of the law to
not allowed to fill the void or supply missing details. What is restrain and curtail the exercise of the right to make a will.
permitted is a probe into the will, an exploration within its So when an interpretation already given assures such ends,
confines, to ascertain its meaning or to determine the any other interpretation whatsoever, that adds nothing but
existence or absence of the requisite formalities of the law. demands more requisites entirely unnecessary, useless and
- The right to make a testamentary disposition of one's frustrative of the testator’s will must be disregarded.
property is purely of statutory creation, and is available only
upon a compliance with the requirements of the statute. The Abada v. Abaja
formalities which the Legislature has prescribed for the
execution of a will are essential to its validity, and cannot be - Spouses Abada and Toray died without legitimate children.
disregarded. - Alipio Abaja filed with the CFI a petition for the probate of the
- The mode so prescribed is the measure for the exercise of will of Abada. Abada allegedly names his testamentary heirs
the right, and the heir can be deprived of his inheritance only his natural children: Eulogio and Rosario. Alipio is the son of
by a compliance with this mode. Eulogio.
- For the purpose of determining whether a will has been - Caponong opposed the petition on the ground that Abada
properly executed, the intention of the testator in executing it left no will when he died.
is entitled to no consideration. - Caponong alleged that the will should be disallowed on the
- For that purpose only the intention of the Legislature, as following reasons: (1) it was not executed and attested as
expressed in the language of the statute, can be considered required by law; (2) it was not intended as the last will of the
by the court, and whether the will as presented, shows a testator; and (3) it was procured by undue and improper
compliance with the statute. pressure and influence on the part of the beneficiaries.
- Later, Caponong-Noble was named as Special Administratix
of the estate of Abada and Toray. Caponong-Noble moved
for the dismissal of the petition for probate of the will of
Abada but such motion was denied.
- When the case was submitted for decision, a Resolution
Cuevas v. Achacoso was rendered where it was held that there was a substantial
compliance with the formalities of the will. In the said
- Valentina Cuevas, filed a petition for the probate of the will Resolution, the trial court only determined whether the will of
of Jose Venzon, her husband. Abada has an attestation clause as required by law.
- Upon appeal, the CA affirmed the trial court’s Resolution.
Hence, this appeal.
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Whether the CA erred in sustaining the trial court in admitting ART. 810. A person may execute a holographic
to probate the will of Abada.
will which must be entirely written, dated, and
- NO. The SC affirmed the decision of the Court of Appeals.
signed by the hand of the testator himself, It
What laws apply to the probate of the last will of Abada? is subject to no other form, and may be made
- Abada executed his will on June 1932. The laws in force at in or out of the Philippines, and need not be
that time are the Old Civil Code and the Code of Civil witnessed.
Procedure.
Simplicity of the holographic will is its obvious
Whether the will of Abada requires acknowledgement before a
advantage, along with other benefits such as
notary public.
1. Secrecy
- NO. What Caponong-Noble cited was Arts. 804 & 806 of the 2. Inexpensiveness
NCC. In this case, the Code of Civil Procedure applies 3. Brevity
where the intervention of a notary is not necessary in the
execution of any will. Thus, Abada’s will does not require But that very simplicity brings about disadvantages –
acknowledgment before a notary public. 1. Danger of forgery
2. Greater difficulty of determining testamentary
Whether the will must expressly state that it is written in a
capacity
language or dialect known to the testator.
3. Increased risk of duress
- NO. There is no statutory requirement to state in the will
itself that the testator knew the language or dialect used in REQUIREMENTS OF A HOLOGRAPHIC WILL
the will. This is a matter that a party may establish by proof 1. COMPLETELY HANDWRITTEN BY THE
aliunde. In this case, Alipio’s testimony sufficiently proves TESTATOR
that Abada speaks the Spanish Language.
• If testator executes only part of the will in
Whether the will has an attestation clause. his handwriting and other parts are not so
- YES. written, the ENTIRE will is void because the
article would be violated.
Whether the attestation clause states the number of pages on
which the will was written. 2. DATED BY HIM
- YES. It showed that the pages are numbered correlatively • Date – Specification or mention, in a
with the phrase containing “UNO y DOS” meaning “ONE” written instrument, of the time [day, month
and “TWO”. and year] it was made [executed]. – Black’s
Law Dictionary
Whether the attestation clause states that the testator signed • As a general rule, the date in a
the will in its every page in the presence of 3 witnesses. holographic will should include the day,
- The English translation of the attestation clause clearly month, and year of its execution. However,
states that Abada signed the will and its every page in the when there is no appearance of fraud, bad
presence of the witnesses. faith, undue influence and pressure and the
- However, the SC held that Caponong-Noble was correct is
authenticity of the Will is established and the
saying that the attestation clause does not indicate the
only issue is whether or not the date FEB./61
number of witnesses. On this point, the Court agreed with
the CA in the application of the rule on substantial is a valid compliance, probate of the
compliance in determining the number of witnesses. While holographic will should be allowed under the
the attestation clause does not state the number of principle of substantial compliance.
witnesses, a close inspection of the will shows that 3 • A complete date is required to provide
witnesses signed it. against such contingencies as –
a) Two competing wills executed on the
Whether the attestation clause states that the witnesses same day, or
witnessed and signed the will and all its pages in the presence b) Of a testator becoming insane in the
of the testator and each other. day on which a will was executed.
- YES. The last part of the attestation clause shows that the • The law does not specify a particular
attesting witnesses witnessed the signing of the will of the location where the date should be placed in
testator, and that each signed the will in the presence of one the will. The only requirements are that the
another and of the testator. date be in the will itself and executed in the
- The question on the number of witnesses is answered by an hand of the testator.
examination of the will itself and without the need for
presentation of evidence aliunde. 3. SIGNED BY TESTATOR
- Precision of language in drafting an attestation clause is • Must signature be at the will’s end [at
desirable. However, it is not imperative that a parrot-like least the logical end]? YES, article 812 seems
copy of the words of the state be made. It is sufficient if from to imply this.
the language employed it can reasonable deduced that the
attestation clause fulfills what the law expects of it. • May the testator sign by means of a
thumbprint? NO, article says will must be
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“entirely handwritten, dated and signed by the - The intention to show March 17 1968 as the date of the
hand of the testator himself.” execution is plain from the tenor of the succeeding words of
the paragraph. It states that “this being in the month of
CASES March 17th day, in the year 1968, and this decision and or
Roxas v. De Jesus instruction of mine is the matter to be followed. And the one
who made this writing is no other than Melecio Labrador,
- After the death of the de Jesus spouses, Simeon Roxas their father.”
(brother of the deceased Bibliana Roxas de Jesus) filed a - This clearly shows that this is a unilateral act of Melecio who
special proceeding to settle the intestate estate of the de plainly knew that he was executing a will.
Jesus spouses. - Article 810 of the Civil Code
- Later, Simeon delivered to the court a document purporting
to be the holographic will of Bibliana. He stated that after
being appointed as administrator, he found a notebook of
Bibliana which contained the letter-will addressed to her
ART. 811. In the probate of a holographic will, it
children written and signed by Bibliana. shall be necessary that at least one witness
- The will was dated “FEB./61” and this was confirmed by the who knows the handwriting and signature of
testimonies of Simeon as and the 2 children of Bibliana. the testator explicitly declare that the will and
- Henson, another compulsory heir, opposed the probate of the signature are in the handwriting of the
the holographic will contending that it was not dated as testator. If the will is contested, at least three
required by Art. 810.
- She contends that the law requires that the will should of such witnesses shall be required.
contain the day, month, and year of its execution and this In the absence of any competent witness
should be complied with. referred to in the preceding paragraph, and if
the court deem it necessary, expert testimony
WON the holographic will dated as “FEB./61” was properly may be resorted to,
dated.
- YES. If the testator attempts to comply with all the requisites,
Article applies only to POST MORTEM probates, it
although compliance is not literal, it is sufficient if the
objective or purpose sought to be accomplished by such does not apply to Ante Mortem probates since in such
requisite is actually attained by the form followed by the cases the testator himself files the petition and will
testator. identify the document itself.
- SC found no evidence of bad faith and fraud in the execution
of the will, nor was there substitution of wills. Neither is there The three witness provision in case of contested
any question as to the genuineness and due execution of holographic wills is DIRECTORY, not mandatory.
the will. Testamentary wills – mandatory
- The objection put forth by Henson is too technical to be Holographic wills – directory
entertained.
- GR: The date in a holographic will should include the day, Witnesses must:
month and year of execution. 1. Know the handwriting and signature of the
- E: In the absence of appearance of fraud, bad faith, undue testator
influence, and pressure and the authenticity of the will is 2. Truthfully declare that handwriting and
established, and the only issue is the validity of the date signature is that of the testator
“FEB.61” appearing on the will, the probate should be
allowed under the principle of substantial compliance. In the probate of a holographic will, the document itself
must be produced. Therefore, a holographic will cannot
be probated.
Labrador v. CA
The execution and contents of a lost or destroyed
- Melecio died leaving behind a parcel of land to his heirs. holographic will MAY NOT BE PROVED by the bare
However, during probate proceedings, Jesus and testimony of witnesses who have seen and/or read
Gaudencio filed an opposition on the ground that the will has such will. However, attested wills MAY BE PROVED by
been extinguished by implication of law alleging that before testimonial evidence.
Melecio’s death, the land was sold to them evidenced by
Why the difference in rules?
TCT No. 21178. Jesus eventually sold it to Navat.
- Trial court admitted the will to probate and declared the TCT Because of the nature of the wills. In holographic
null and void. However, the CA on appeal denied probate on wills, the only guarantee of authenticity is the
the ground that it was undated. handwriting itself. In attested wills, the testimony of
subscribing or instrumental witnesses and of the
Whether or not the alleged holographic will is dated, as notary guarantees authenticity of the will.
provided for in Article 810 of the Civil Code Loss of the holographic will entails loss of the only
- SC held that it is dated because: medium of proof while loss of the ordinary will
- The law does not specify a particular location where the date leaves the subscribing witnesses available to
should be placed in the will. The only requirements are that authenticate.
the date be in the will itself and executed in the hand of the
testator.
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In the case of ordinary wills, it would be more - Art 811 requiring three witnesses in the probate of a
difficult to convince 3 witnesses plus the notary to contested holographic will is merely directive and not
deliberately lie. mandatory.
Considering the holographic will may consist of 2-3
pages and only one of them need be signed, the Codoy v. Calugay
substitution of the unsigned pages may go
undetected. - On 6 April 1990, Evangeline Calugay, Josephine Salcedo
and Eufemia Patigas, devisees and legatees of the
In the case of a lost ordinary will, the 3 subscribing
holographic will of the deceased Matilde Seño Vda. de
witnesses would be testifying as to a FACT which Ramonal, filed a petition for probate of the said will.
they saw, namely the act of the testator of - They attested to the genuineness and due execution of the
subscribing the will. Whereas in the case of a lost will on 30 August 1978.
holographic will, the witnesses would testify as to - Eugenio Ramonal Codoy and Manuel Ramonal filed their
their OPINION of the handwriting which they opposition claiming that the will was a forgery and that the
allegedly saw, an opinion which cannot be tested in same is even illegible.
court nor directly contradicted by the oppositors - They raised doubts as regards the repeated appearing on
because the handwriting itself is not at hand. the will after every disposition, calling the same out of the
ordinary.
EXCEPTION – may be proved by a photographic or - If the will was in the handwriting of the deceased, it was
photostatic copy, even a mimeographed or carbon improperly procured.
copy, or by other similar means, if any, whereby the - Evangeline Calugay, etc. presented 6 witnesses and various
authenticity of the handwriting of the deceased may be documentary evidence.
exhibited and tested before the probate court. - The first witness was the clerk of court of the probate court
who produced and identified the records of the case bearing
CASES the signature of the deceased.
Azaola v. Singson - The second witness was election registrar who was made
to produce and identify the voter’s affidavit, but failed to as
- The subject of this case is the holographic will of Fotunata
the same was already destroyed and no longer available.
Yance.
- Francisco Azaola submitted the said holographic will - The third, the deceased’s niece, claimed that she had
whereby Maria Azaola was made the sole heir of the acquired familiarity with the deceased’s signature and
deceased. handwriting as she used to accompany her in collecting
- The probate of the will is contested on the ground that the rentals from her various tenants of commercial buildings and
will was executed under undue influence, that the document the deceased always issued receipts.
was not intended to be the will of the deceased and that the - The niece also testified that the deceased left a holographic
proponent of the will failed to present at least three will entirely written, dated and signed by said deceased.
witnesses who could declare the will and the signature - The fourth witness was a former lawyer for the deceased in
therein to be in the writing of the testatrix. the intestate proceedings of her late husband, who said that
- In this case, the proponent of the will only presented one the signature on the will was similar to that of the deceased
witness to prove that the body of and signature in the will but that he can not be sure.
was that of the testator
- The fifth was an employee of the DENR who testified that
Whether or not the three-witness rule is mandatory and she was familiar with the signature of the deceased which
applicable in this case appeared in the latter’s application for pasture permit.
- The SC held that the petitioner is not bound to produce more - The fifth, respondent Evangeline Calugay, claimed that
than one witness as the authenticity of the will is not in she had lived with the deceased since birth where she had
question. become familiar with her signature and that the one
- Granting also that the genuineness of the will is contested, appearing on the will was genuine.
the provision of Art 811 should not be interpreted to require - Codoy and Ramonal’s demurrer to evidence was granted by
the compulsory presentation of the three witnesses. the lower court. It was reversed on appeal with the Court of
- First, it should be noted that in holographic wills, no witness Appeals which granted the probate.
is required in the execution thereof, thus the existence of the
witnesses possessing the requisite qualifications is a matter Whether or not Article 811 of the Civil Code, providing that at
beyond the control of the proponent. least three witnesses explicitly declare the signature in a
contested will as the genuine signature of the testator, is
- Second, the law itself contemplates a situation where no
mandatory or directory.
competent witness can be produced thus allowing the court - YES. The word “shall” connotes a mandatory order, an
to resort to expert evidence to supply the deficiency. imperative obligation and is inconsistent with the idea of
- To clarify further, the option to require expert evidence discretion and that the presumption is that the word “shall”,
depends on the discretion of the court. If the court is when used in a statute, is mandatory.
convinced by the testimony of the witnesses, it may no - In the case at bar, the goal to be achieved by the law, is to
longer ask for expert evidence. However, if there is no give effect to the wishes of the deceased and the evil to be
competent witness or if those produced were not convincing, prevented is the possibility that unscrupulous individuals
the court may accordingly call for expert evidence. who for their benefit will employ means to defeat the wishes
- Thus, the case is remanded to allow the parties to adduce of the testator.
additional evidence including expert testimony.
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- The paramount consideration in the present petition is to - In opposition to said proceedings, the surviving husband
determine the true intent of the deceased. Ildefonso Yap asserted that the deceased had not left any
will, nor executed any testament during her lifetime.
Whether or not the witnesses sufficiently establish the - After hearing the parties, the court refused to probate the
authenticity and due execution of the deceased’s holographic alleged will. The will itself was not presented.
will. - Sometime in 1950, Felicidad Esguerra mentioned to her first
- NO. We cannot be certain that the holographic will was in cousin Vicente Esguerra her desire to make a will. However,
the handwriting of the deceased. she wanted it to be a secret because she said that it would
- The clerk of court was not presented to declare explicitly that be useless if her husband discovered or knew about it.
the signature appearing in the holographic will was that of - So Vicente consulted with the nephew of Felicidad and
the deceased. found out that it could be done provided that the document
- The election registrar was not able to produce the voter’s was entirely in her handwriting, signed and dated by her.
affidavit for verification as it was no longer available. - As a result of this, Felicidad proceeded with the making of
- The deceased’s niece saw pre-prepared receipts and letters her will. Though it was a secret, she would show people who
of the deceased and did not declare that she saw the would visit her will.
deceased sign a document or write a note. - After evaluating the pieces of evidence presented before the
- The will was not found in the personal belongings of the court, the trial judge had to accept the oppositor’s evidence
deceased but was in the possession of the said niece, who that Felicidad did not and could not have executed such
kept the fact about the will from the children of the holographic will.
deceased, putting in issue her motive. - Hence this appeal.
- Evangeline Calugay never declared that she saw the
decreased write a note or sign a document. WON, a lost holographic will can be admitted to probate.
- The former lawyer of the deceased expressed doubts as to - No. Articles 810-814 govern holographic wills. It is stated
the authenticity of the signature in the holographic will. that, “A person may execute a holographic will which must
- (As it appears in the foregoing, the three-witness be entirely written, dated and signed by the hand of the
requirement was not complied with.) testator himself. It is subject to no other form and may be
- A visual examination of the holographic will convinces that made in our out of the Philippines, and need not be
the strokes are different when compared with other witnessed.”
documents written by the testator. - Unlike ordinary wills, holographic wills need not observe the
- The records are remanded to allow the oppositors to rules laid down in Art. 805 for its compliance with the law. As
adduce evidence in support of their opposition. long as it is written entirely, dated and signed by the testator
- The object of solemnities surrounding the execution of wills himself, then it will be sufficient proof that it has been
is to close the door against bad faith and fraud, to avoid executed in accordance with law.
substitution of wills and testaments and to guaranty their - However, witnesses may be brought in so as to verify that
truth and authenticity. Therefore, the laws on this subject the will and the signature are in the handwriting of the
should be interpreted in such a way as to attain these testator. The witnesses so presented do not need to have
primordial ends. But, on the other hand, also one must not seen the execution of the holographic will.
lose sight of the fact that it is not the object of the law to - In the case hand however, the will holographic will was not
restrain and curtail the exercise the right to make a will. presented to the court. Obviously, when the will itself is not
- However, we cannot eliminate the possibility of a false submitted, these means of opposition and, of assessing the
document being adjudged as the will of the testator, which is evidence are not available. And then the only guaranty of
why if the holographic will is contested, the law requires authenticity – the testator’s handwriting – has disappeared.
three witnesses to declare that the will was in the - It is therefore to be concluded that the execution and the
handwriting of the deceased. contents of a lost or destroyed holographic will may not be
proved by the bare testimony of witnesses who have seen
- Article 811, paragraph 1. provides: “In the probate of a and/ or read such will.
holographic will, it shall be necessary that at least one - This is because the only guaranty of the authenticity is the
witness who knows the handwriting and signature of the handwriting itself. The loss of the holographic will entails the
testator explicitly declare that the will and the signature are loss of the only medium of proof.
in the handwriting of the testator. If the will is contested, at - That even if oral testimony were admissible to establish and
least three of such witnesses shall be required.” probate a lost holographic will, the evidence submitted by
- The word “shall” connotes a mandatory order, an imperative the petitioner is so tainted with improbabilities and
obligation and is inconsistent with the idea of discretion and inconsistencies that it fails to measure up to that clear and
that the presumption is that the word “shall”, when used in a distinct proof required by Rule 77.
statute, is mandatory. - Rejection of the alleged will must be sustained
- The execution and the contents of a lost or destroyed
Gan v. Yap holographic will may not be proved by bare testimony of
witnesses who have seen and/or read such will. The will
- On November 20, 1951, Felicidad Esguerra Alto Yap died of itself must be presented; otherwise, it shall produce no
heart failure in the UST hospital leaving properties in effect. The law regards the document itself as material proof
Bulacan and in Manila. of authenticity.
- On March 17, 1952, Fausto E. Gan initiated these
proceedings in CFI Manila for probate the holographic will Rodelas v. Aranza
executed allegedly by the deceased.
- The probate court ordered the dismissal of Rodelas’ petition
for the allowance of the holographic will of deceased
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Ricardo B. Bonilla on the ground that the alleged photostatic 2. If additional dispositions before the last are not
copy of the will which was presented for probate, cannot signed and not dated, but the last disposition is
stand in lieu of the lost original, for the law regards the signed and dated, what happens to the
document itself as the material proof of the authenticity of intermediate ones?
the said will. • If made on one occasion – last disposition
signed and dated validates all.
Whether a holographic will which was lost or can not be found
can be proved by means of a photostatic copy
• If on different occasions – intermediate
- Pursuant to Article 811 of the Civil Code, probate of additions are void.
holographic wills is the allowance of the will by the court • But distinction is practically worthless
after its due execution has been proved. because circumstances of execution of
- The probate may be uncontested or not. If uncontested, at holographic wills are often difficult to
least one identifying witness is required and, if no witness is prove.
available, experts may be resorted to. If contested, at least
three identifying witnesses are required.
- However, if the holographic will has been lost or destroyed ART. 814. In case of any insertion, cancellation,
and no other copy is available, the will can not be probated
because the best and only evidence is the handwriting of the erasure or alteration in a holographic will, the
testator in said will. It is necessary that there be a testator must authenticate the same by his
comparison between sample handwritten statements of the full signature.
testator and the handwritten will.
- But, a photostatic copy or xerox copy of the holographic will Full signature does not mean testator’s full name, only
may be allowed because comparison can be made with the his usual and customary signature.
standard writings of the testator. Even a mimeographed or Effect of non-compliance – the change [insertion,
carbon copy; or by other similar means, if any, whereby the cancellation, etc.] is simply considered NOT MADE.
authenticity of the handwriting of the deceased may be The will is not thereby invalidated as a whole, but at
exhibited and tested before the probate court, may be
most only as regards the particular words erased,
allowed.
corrected or inserted UNLESS the portion involved is
- If the holographic will has been lost or destroyed and no an essential part of the will, such as the date.
other copy is available, the will can not be probated
because the best and only evidence is the handwriting of the CASE
testator in said will. Kalaw v. Relova
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RULES OF FORMAL VALIDITY ART. 818. Two or more persons cannot make a
1. FILIPINO ABROAD will jointly, or in the same instrument, either
• According to the law in the country in for their reciprocal benefit or for the benefit of
which he may be a third person.
• And may be probated in the Philippines
JOINT WILL – one document which constitutes the wills
2. ALIEN ABROAD
of two or more individuals.
• Has effect in the Philippines if made
If there are separate documents, each serving as one
according to:
independent will even if written on the same sheet, they
a) Law of place where he resides
are not joint wills prohibited by the article.
b) Law of his own country
c) Philippine law Reason for Prohibition of Joint Wills
3. ALIEN IN THE PHILS. 1. Limitation on modes of revocation
• Valid in Philippines / As if executed • One of the testators would not be able to
according to Philippine laws, if: destroy the document without also revoking it
a) Made according to law of country as the will of the other testator, or in any
which he is a citizen or subject, and even, as to the latter, the problem of
b) May be proved and allowed by law of unauthorized destruction would come in
his own country 2. Diminution of testamentary secrecy
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3. Danger of undue influence formalities prescribed by law nor for lack of testamentary
4. Danger of one testator killing the other capacity of the testatrix.
• When a will is made jointly or in the same - On appeal, the CA reversed said Decision holding that the
instrument, the spouse who is more dominant decedent did not comply with Articles 313 and 314 of the
is liable to dictate the terms of the will for his NCC. It found that certain dispositions in the will were either
or her own benefit or for that of the third unsigned or undated, or signed by not dated. It also found
that the erasures, alterations and cancellations made had
persons whom he or she desires to favor.
not been authenticated by decedent.
• Where the will is not only joint but - Hence, this appeal.
reciprocal, either one of the spouses who
may happen to be unscrupulous, wicked, Whether the CA erred in holding that Articles 813 and 814 of
faithless or desperate, knowing as he or she the NCC were not complies with.
does the terms of the will whereby the whole - YES. The SC reversed the decision of CA.
property of the spouses both conjugal and - A reading of Article 813 shows that its requirement affects
paraphernal goes to the survivor, may be the validity of the dispositions contained in the holographic
tempted to kill or dispose of the other. will, but not its probate. If the testator fails to sign and date
In Germany, joint wills are allowed but only between some of the dispositions, the result is that these dispositions
spouses. cannot be effectuated. Such failure, however, does not
render the whole testament void.
- Likewise, a holographic will can still be admitted to probate
notwithstanding non-compliance with the provisions of
ART. 819. Wills, prohibited by the preceding Article 814.
article, executed by Filipinos in a foreign - Unless the authenticated alterations, cancellations or
country shall not be valid in the Philippines, insertions were made on the date of the holographic will or
even though authorized by the laws of the on testator’s signature, their presence does not invalidate
country where they may have been executed. the will itself. The lack of authentication will only result in
disallowance of such changes.
- It is also proper to note that he requirements of
Outline on Joint Wills
authentication of changes and signing and dating of
1. By Filipinos in the Philippines – VOID Art818 dispositions appear in provisions (Article 813 and 814)
2. Filipinos Abroad – VOID Art819, even if allowed separate from that which provides for the necessary
by law in place of execution. This is an conditions for the validity of the holographic will (Article 810).
exception to the permissive provisions of - This separation and distinction adds support to the
Arts17 and 815. interpretation that only the requirements of Article 810 of the
3. Aliens Abroad – VALID, Art816 NCC – and not those found in Articles 813 and 814 – are
4. Aliens in Philippines – Controverted, on one view essential to the probate of a holographic will.
it is void because of public policy, another - Section 9, Rule 76 of the Rules of Court and Article 839 of
view says it is valid because Art817 the Civil Code enumerate the grounds for disallowance of
governs. wills. These lists are exclusive; no other grounds can serve
5. Filipino and Alien – Always VOID as to the to disallow a will.
Filipino, but either #3 or #4 governs, - In a petition to admit a holographic will, the only issues to be
depending if he is abroad or in the Phils. resolved are:
o whether the instrument submitted is,
Cases for Arts. 810-819 indeed, the decedent’s last will and
testament;
o whether said will was executed in
Ajero v CA
accordance with the formalities prescribed
by law;
- The holographic will of Annie San was submitted for
o whether the decedent had the necessary
probate.
testamentary capacity at the time the will
- Private respondent opposed the petition on the grounds that:
was executed; and
neither the testament’s body nor the signature therein was in
o whether the execution of the will and its
decedent’s handwriting; it contained alterations and
corrections which were not duly signed by decedent; and, signing were the voluntary acts of the
the will was procured by petitioners through improper decedent.
pressure and undue influence. - The object of the solemnities surrounding the execution of
- The petition was also contested by Dr. Ajero with respect to wills is to close the door against bad faith and fraud;
the disposition in the will of a house and lot. He claimed that accordingly, laws on this subject should be interpreted to
said property could not be conveyed by decedent in its attain these primordial ends.
entirety, as she was not its sole owner. - In the case of holographic wills, what assures authenticity is
- However, the trial court still admitted the decedent’s the requirement that they be totally authographic or
holographic will to probate. handwritten by the testator himself. Failure to strictly observe
- The trial court held that since it must decide only the other formalities will no result in the disallowance of a
question of the identity of the will, its due execution and the holographic will that is unquestionable handwritten by the
testamentary capacity of the testatrix, it finds no reason for testator.
the disallowance of the will for its failure to comply with the
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- Santiago filed a petition with the CFI for the probate of the As in the case of testamentary capacity under Art801,
will allegedly executed by the deceased Gabriel. the time of the execution of the will is the only relevant
- Gonzales opposed the probate. Among other grounds, she temporal criterion in the determination of the
contends that the witnesses who attested to the due competence of the witnesses.
execution of the will were not qualified witnesses.
- She argues that the requirement in Art. 806 of the NCC that
the witness must be credible is an absolute requirement
which must be complied with before a last will and testament ART. 823. If a person attests the execution of a
may be admitted. will, to whom or to whose spouse, or parent,
- She claims that to be ca credible witness, there must be or child, a devise or legacy is given by such
evidence on record that the witness has good standing in will, such devise or legacy shall, so far only
the community, or that he is honest and upright, or reputed as concerns such person, or spouse, or
to be trustworthy and reliable.
- Gonzales further contends that “credible” is not synonymous
parent, or child of such person, or any one
with “competent” because a witness may be competent claiming under such person or spouse, or
under Arts. 820 and 821 of the NCC, and still not credible as parent, or child, be void, unless there are
required by Art. 805. three other competent witnesses to such will.
- She further asserts that “credible” in the NCC should receive However, such person so attesting shall be
the same well-settled meaning it has under the
Naturalization Law.
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can incorporate documents by reference, since ART. 830. No will shall be revoked except in the
only attested wills are witnessed. following cases:
Unless testator executes a holographic will and (1) By implication of law; or
superfluously has it witnessed. (2) By some will, codicil, or other writing
executed as provided in case of wills; or
(3) By burning, tearing, canceling, or
Subsection 6 – Revocation of Wills obliterating the will with the intention of
And Testamentary Dispositions revoking it, by the testator himself, or by
some other person in his presence, and
by his express direction. If burned, torn,
ART. 828. A will may be revoked by the testator at cancelled, or obliterated by some other
any time before his death. Any waiver or person, without the express direction of
restriction of this right is void. the testator, the will may still be
established, and the estate distributed in
A will is essentially REVOCABLE or AMBULATORY.
accordance therewith, if its contents, and
This characteristic cannot be waived even by the
testator. There is no such thing as an irrevocable will. due execution, and the fact of its
This characteristic is consistent with the principle in unauthorized destruction, cancellation, or
Art777 that successional rights vest only upon death. obliteration are established according to
the Rules of Court.
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ART. 831. Subsequent wills which do not revoke It must be remembered that dependent relative
the previous ones in an express manner, revocation applies only if it appears that the testator
annul only such dispositions in the prior wills intended his at of revocation to be conditioned on the
as are inconsistent with or contrary to those making of a new will or on its validity or efficacy.
contained in the latter wills. In Molo v. Molo, the Samson v. Naval doctrine was
cited, providing that “A subsequent will, containing a
Revocation of a will by a subsequent will or codicil may clause revoking a previous will, having been disallowed,
be express [through a revocatory clause] or implied for the reason that it was not executed in conformity
[through incompatibility]. with the provisions of the Code of Civil procedure as to
In the old Civil Code, mere fact of a subsequent will, the making of wills, cannot produce the effect of
provided that it is valid, revoked the prior one, except annulling the previous will, inasmuch as said revocatory
only if the testator provides in the posterior will that the clause is void.”
prior will was to subsists in whole or in part.
The present rule provides that the execution of a Question – supposing the institution of heirs, legatees
subsequent will does not ipso facto revoke a prior one. or devisees in the subsequent will is subject to a
suspensive condition, is the revocation of the prior will
absolute or conditional?
ART. 832. A revocation made in a subsequent will Depends on the testator’s intent.
shall take effect, even if the new will should If the subsequent will contains a revocatory clause
become inoperative by reason of the which is absolute or unconditional, the revocation
incapacity of the heirs, devisees or legatees will be absolute regardless of the happening or
designated therein, or by their renunciation. non-happening of the suspensive condition.
But if the testator states in the subsequent will that
Efficacy of the revocatory clause does not depend on the revocation of the prior will is subject to the
the testamentary disposition of the revoking will, occurrence of the suspensive condition, or if the
UNLESS the testator so provides. Revocation is will does not contain a revocatory clause, the
generally speaking, an absolute provision, independent revocation will depend on whether the condition
of the acceptance or capacity of the new heirs. happens or not.
• If the suspensive condition does not
An EXCEPTION is where the testator provides in the occur, the institution is deemed never to
subsequent will that the revocation of the prior one is have been made and the prior institution
dependent on the Capacity or Acceptance of the heirs, will be given effect. [i.e. no revocation of
devisees or legatees instituted in the subsequent will. prior will]
• DEPENDENT RELATIVE REVOCATION • This is in accord with the juridical nature
of suspensive conditions, and is an
instance of dependent relative revocation.
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the necessary requisites to constitute sufficient be void, probate will not be possible, UNLESS a copy of
revocation. The court then held that the intention of the holographic will survives.
revoking the will was manifest from the fact that the
testator was anxious to withdraw or change the The rule regarding nullity of revocation for an illegal
provisions he had made in his first will. Therefore, cause limits the freedom of the testator to revoke based
the court concluded that original will presented on an illegal cause, but this is due to public policy
having been destroyed with animo revocandi, the considerations.
original will and last testament cannot be probated It must be noted that the illegal cause should be stated
and was effectively revoked. in the will as the cause of the revocation.
In Molo, revocation of the prior will was not allowed
because the court inferred that the testator meant
revocation to depend on the validity of the new will, ART. 834. The recognition of an illegitimate child
so in that case the rule on dependent relative does not lose its legal effect, even though the
revocation was applied. will wherein it was made should be revoked.
However, in De Leon, court held that the testator’s
intent to revoke the prior will was not dependent on The part of the will which recognizes an illegitimate
the validity of the subsequent will so even if the child is NOT revocable because recognition is an
second will was void and insufficient as revocation, irrevocable act. Therefore, even if the will is revoked,
the prior will was still revoked because such the recognition remains effective.
revocation was not dependent on the validity of the
second will [?!!] Under the Family Code, admission of illegitimate
filiation in a will would constitute proof of illegitimate
filiation. According to Article 175 of the Family Code –
ART. 833. A revocation of a will based on a false Art175. Illegitimate children may establish
cause or an illegal cause is null and void. their illegitimate filiation in the same way and on
the same evidence as legitimate children.
Wills are revocable ad nutum or at the testator’s The action must be brought within the same
pleasure. The testator does not need to have a reason period specified in Art173, except when the
to revoke the will. action is based on the second paragraph of
However, precisely because the law respects the Art172, in which case the action may be brought
testator’s true intent, this article sets aside a revocation during the lifetime of the alleged parent.
that does not reflect such intent.
Basically, the principle laid down in Art834 remains
unaltered regarding these admissions contained in
wills.
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ART. 837. If after making a will, the testator suppressing the will or tearing or destroying it, and then take
makes a second will expressly revoking the steps in leading to the probate of the 1918 will.
- Had the oppositors in this case not filed an opposition and
first, the revocation of the second will does
had limited their objection to the intrinsic validity of the will,
not derive the first will, which can be revived their plan to defeat the will and secure the intestacy of the
only by another will or codicil. deceased would have been accomplished.
- If the said will was denied probate, it is due to oppositor’s
Illustration fault and is unfair to impute bad faith to petitioner simply
In 1985, X executed will 1 because she exerted effort to protect her own interest and
In 1987, X executed will 2 and expressly revoked prevent the intestacy of the deceased.
will 1
In 1990, X executed will 3, revoking will 2 WON, notwithstanding the disallowance of the 1939 will, the
- When will 3 revoked will 2, it did not revive will 1. revocatory clause is valid and still nullifies the 1918 will.
- SC held that the clause is likewise void because:
This article is based on the theory of INSTANT - The Court held in Samson v. Naval that it cannot produce
REVOCATION the effect of annulling the previous will since said revocatory
clause is void.
That the revocatory effect of the 2nd will is
- If it was really the intention of the deceased to revoke the
immediate.
first will, with the assumption that he in fact destroyed the
However, such theory is inconsistent with the original copy of the 1918 will since it cannot be found at
principle that wills take effect mortis causa. present, he should also destroyed the duplicate copy of the
Furthermore, to be effective for the purpose of said will which he had given to his wife. But he did not do so.
revoking the first will, the second will must be Hence, it is possible that because of the long lapse of 21 yrs
probated. But it has already been revoked by the since the 1st will was executed, the original will had been
third will. A revoked will now has to be submitted to misplaced or lost and forgetting there was a copy, he
probate? deemed it wise to execute another.
- Granting that he did destroy the 1st will, the 1918 will can still
Article applies only when the revocation of the first will be admitted under the principle of “dependent relative
by the second will is EXPRESS. If the revocation by the revocation,” which is predicated on the theory that the
second will is implied due to incompatible provisions, testator did not intend to die intestate.
the article will not apply and the effect will be that the - The doctrine of dependent relative revocation is established
first will is revived. where the act of destruction is connected with the making of
However, when will 3 is itself inconsistent with will another will so as fairly to raise the inference that the
1, there is still revocation. testator meant the revocation of the old to depend upon the
efficacy of the new disposition intended to be substituted,
Also keep in mind Article 831 – Implied the revocation will be conditional and dependent upon the
Revocations only annul such dispositions in the efficacy of the new disposition; and if, for any reason, the
prior wills as are inconsistent with or contrary to new will intended to be made as a substitute is inoperative,
those contained in the latter wills. the revocation fails and the original will remains in full force.
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- YES. There is positive proof, not denied, that the will in - The original will herein presented for probate having been
question had been cancelled in 1920. destroyed with animo revocandi cannot now be probated as
- The law does not require any evidence of the revocation or the will and last testament of Jesus de Leon.
cancellation of a will to prove the same. - Judgment affirmed.
- The fact that such cancellation or revocation has taken place - The destruction of a will with animo revocandi constitutes, in
must either remain unproved or be inferred from evidence itself, a sufficient revocation.
showing that after due search the original will cannot be
found. If it be shown that the will was in the possession of
the testator when last seen, the presumption is, in the Subsection 8 – Allowance and
absence of other competent evidence, that the same was Disallowance of Wills
cancelled or destroyed.
- The same presumption governs when the testator had ready
access to the will and it cannot be found after his death. ART. 838. No will shall pass either real or
- No presumption of destruction by any other person without
the knowledge or authority of the testator.
personal property unless it is proved and
- The force of presumption is never conclusive but may be allowed in accordance with the Rules of
overcome by proof that the will was not destroyed by the Court.
testator with intent to revoke it. The testator himself may, during his
- Copies of wills should be admitted by courts with great lifetime, petition the court having jurisdiction
caution in view of the difficulty of finding witnesses and other for the allowance of his will. In such case, the
evidence.
- The duplicate may be admitted to probate if it was in the
pertinent provisions of the Rules of Court for
same manner executed with all formalities and requirements the allowance of wills after the testator’s
of the law. death shall govern.
- The fact that such cancellation or revocation has taken place The Supreme Court shall formulate such
must either remain unproved or be inferred from evidence additional Rules of Court as may be
showing that after due search the original will cannot be necessary for the allowance of wills on
found.
- If it be shown that the will was in the possession of the
petition of the testator.
testator when last seen, the presumption is, in the absence Subject to the right of appeal, the
of other competent evidence, that the same was cancelled allowance of the will, either during the lifetime
or destroyed. of the testator or after his death, shall be
- The same presumption governs when the testator had ready conclusive as to its due execution.
access to the will and it cannot be found after his death.
- No presumption of destruction by any other person without
Probate of a will is MANDATORY.
the knowledge or authority of the testator.
- In a proceeding to probate a will, the burden of proof is upon TWO KINDS OF PROBATE
the proponent to establish not only the execution of the will
but also its existence. 1. POST MORTEM – after the testator’s death
2. ANTE MORTEM – during his lifetime, features:
Diaz v. De Leon • Easier for the courts to determine mental
condition of a testator
- In this case, Diaz, the petitioner, denies that the will
• Fraud, intimidation and undue influence
executed by the decedent Jesus de Leon.
are minimized
- However, the contestant says otherwise and alleging that
the testator revoked his will by destroying it, and by • Easier correction of formal defects in the
executing another will expressly revoking the former. will
- Hence, this appeal. • Once a will is probated ante mortem, the
only questions that may remain for the courts
WON, the will executed by the Jesus de Leon, now deceased, to decide after the testator’s death will refer to
was revoked by him. the intrinsic validity of the testamentary
- The court finds that the will executed by the deceased is not dispositions.
clothed with all the necessary requisites to constitute a
sufficient revocation. Rules on Probate for both post and ante mortem are
- But according to the statute governing the subject in this found in Rule 76 of the Rules of Court.
jurisdiction, the destruction of a will with animo revocandi
Finality of a Probate Decree
constitutes, in itself, a sufficient revocation.
- From the evidence presented, the decedent asked that the Once a decree of probate becomes final in
same be returned to him. accordance with the rules of procedure, it is res
- The instrument was returned to the testator who ordered his judicata.
servant to tear the document. This was done in his presence
and before a nurse who testified to this effect. Scope of a Final Decree of Probate
- The intention of revoking the will is manifest from the A final decree of probate is conclusive as to the
established fact that the testator was anxious to withdraw or due execution of the will, i.e. as to the will’s
change the provisions he has made in his first will. extrinsic and formal validity only.
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Sofia as husband and wife. Martin and Sofia were married in signed should be his will at the time of
Tarlac before the Justice of the Peace. affixing his signature thereto.
- Martin devised to his forced heirs (Rufina and their 2
children) his entire estate, and the free portion thereof to
Sofia. An Exclusive Enumeration of the grounds for
- Sofia filed a petition for the probate of the last will and disallowance of a will.
testament of Martin. These are matters involved in formal validity. Once a
- Rufina and her children opposed. probate decree is final, such decree forecloses any
- CFI denied probate on the ground that Martin admitted in his subsequent challenge on any of the matters
will that he had been unlawfully cohabiting with Sofia. enumerated in this article.
- CA reversed and admitted the will to probate, but declared If any of these grounds for disallowance are proven, the
that the devise in favor of Sofia is void. will shall be set aside as VOID.
- Sofia contends that the validity of the testamentary provision A will is either valid or void. If none of the defects
in her favor should be assailed in another proceeding and enumerated in this article are present, it is valid; if
that the only purpose of the probate is to conclusively any one of these defects is present, the will is void.
establish that will was executed with the formalities required The issue of formal validity or nullity is precisely
by law and that the testator has the mental capacity to what the probate proceedings will determine.
execute the same.
There is no such thing as a Voidable Will.
WON the probate court validly passed upon the intrinsic
validity of the testamentary provision in favor of Sofia.
- YES. GROUNDS FOR DISALLOWANCE OF A WILL
- The general rule is that in probate proceedings, the court’s 1. FORMALITIES
area of inquiry is limited to an examination and resolution of • Those referred to in Articles 804-818, 818-
the extrinsic validity of the will. 819 and 829-821
- Such rule is not inflexible and absolute. Given exceptional 2. TESTATOR INSANE OR MENTALLY
circumstances, the probate court is not powerless to pass
INCAPABLE AT TIME OF EXECUTION
upon certain provisions of the will.
- A will no matter how valid it may appear extrinsically may be • Articles 798 – 801 on testamentary
void. A separate proceeding to determine its intrinsic validity capacity and intent
would be superfluous. 3. FORCE, DURESS, INFLUENCE OF
- Sofia cannot claim good faith. She knew that Martin had a FEAR OR THREATS
pre-existing marriage when they got married. • Force or Violence – when in order to wrest
- Further, donations between persons living in adultery or
consent, serious or irresistible force is
concubinage is prohibited by the Civil Code.
employed.
- GR: In probate proceedings, the probate court is usually
limited to an examination and resolution of the extrinsic • Duress or Intimidation – when one of the
validity of the will. contracting parties is compelled by a
- E: For “practical considerations,” the probate court is not reasonable and well-grounded fear of
powerless to pass upon certain provisions of the will even imminent and grave evil upon his person or
before it is probated. property, or upon the person or property of
his spouse, descendants or ascendants, to
give his consent. Age, sex and condition of
the person are borne in mind. Threat to
ART. 839. The will shall be disallowed in any of
enforce a just or legal claim through
the following cases: competent authority does not vitiate consent.
(1) If the formalities required by law have
not been complied with; 4. UNDUE & IMPROPER PRESSURE AND
INFLUENCE
(2) If the testator was insane, or
• Undue Influence – when a person takes
otherwise mentally incapable of
improper advantage of his power over the will
making a will, at the time of its of another, depriving the latter of a
execution; reasonable freedom of choice. Circumstances
(3) If it was executed through force or such as the following shall be considered:
under duress, or the influence of fear, confidential, family, spiritual and other
or threats; relations between parties, or fact that person
(4) If it was procured by undue and unduly influenced was suffering from mental
improper pressure and influence, on weakness or ignorant or in financial distress.
the part of the beneficiary or of some 5. SIGNATURE PROCURED THROUGH FRAUD
other person; • Fraud – when through insidious words or
(5) If the signature of the testator was machinations of one of the contracting
procured by fraud; parties, the other is induced to enter into a
(6) If the testator acted by mistake or did contract which, without them, he would not
not intent that the instrument he have agreed to.
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the testator or interfering with the general testamentary “destroy his free agency and make him express the will of
scheme, or doing injustice to the beneficiaries" another rather than his own.”
- Void provisions in the will: - The testator was an intelligent man, a lawyer by profession,
1. The statement of the testatrix that she owned the appears to have his known his own mind, and may well have
"southern half" of the conjugal lands is contrary to law been actuated only by a legitimate sense of duty in making
because, although she was a co-owner thereof, her provisions for the welfare of his illegitimate son and by a
share was inchoate and pro indiviso proper feeling of gratitude in repaying Rosario Lopez for the
2. that the properties of the testatrix should not be sacrifices she had made for him.
divided among her heirs during her husband's lifetime - Mere affection, even if illegitimate, is not undue influence
but should be kept intact and that the legitimes and does not invalidate a will.
should be paid in cash is contrary to article '080 of - No imposition or fraud has been shown in the present case.
the Civil Code - To be sufficient to avoid a will, the influence exerted must be
of a kind that so overpowers and subjugates the mind of the
Whether an heir may validly renounce his share testator as to destroy his free agency and make him express
- YES. Felix Balanay, Sr. could validly renounce his hereditary the will of another, rather than his own.
rights and his one-half share of the conjugal partnership - Mere affection, even if illegitimate, is not undue influence
(Arts. '79['] and '04', Civil Code) but insofar as said and does not invalidate a will.
renunciation partakes of a donation of his hereditary rights - No imposition or fraud has been shown in the present case.
and his one-half share in the conjugal estate (Art. '050['] Civil - Influence gained by kindness and affection will not be
Code), it should be subject to the limitations prescribed in regarded as ‘undue’, if no imposition or fraud be practiced,
articles 750 and 752 of the Civil Code. A portion of the even though it induces the testator to make an unequal and
estate should be adjudicated to the widower for his support unjust disposition of his property in favor of those who have
and maintenance. Or at least his legitime should be contributed to his comfort and ministered to his wants, if
respected. such disposition is voluntarily made.
- Generally, the probate of a will is mandatory and it is the
duty of the court to pass first upon its formal validity except
in extreme cases where the will is on its face intrinsically
void.
- A will is not rendered null and void by reason of the Macam v. Gatmaitan
existence of some illegal or void provisions since the
invalidity of one of several dispositions contained in a will - On March 27, 1933, Nicolasa Macam filed in the CFI a
does not result in the invalidity of the other dispositions petition for probate of the will date July 12, 1932 and of the
unless it is to be presumed that the testator would not have codicil thereof dated February 17, 1933, executed by
made such other dispositions if the first invalid disposition Leoanarda Macam who died on March 18, 1933.
had not been made; - With the judge absent that there being no opposition to the
- Testacy is favored. Doubts are resolved in favor of testacy probate of the will, upon the instructions of the judge, clerk of
especially where the will evinces an intention on the part of court took the evidence relative to the probate of the will.
the testator to dispose of practically his whole estate. - Inasmuch as Gatmaitan opposed to the probate of the
codicil, the clerk of court deemed himself unauthorized to
Coso v. Daza take evidence relative thereto and refrained from doing so.
- The judge then entered an order allowing the probate of the
- The testator, a married man, had illicit relations with Rosario will.
Lopez in Spain, having met her in 1898. - Hearing then was heard for the opposition on the probate of
- Rosario Lopez took care of the testator in the said foreign the codicil, which Gatmaitan filed, one of the legatees
land when he had been severely ill from 1909 to 1916, and instituted in the will which had already been allowed by final
bore an illegitimate son by him. and executory judgment.
- When the testator came back to the Philippines in 1918, - Probate of the codicil was denied.
Rosario followed, as her heart did dictate, and kept close - Hence this petition.
until the testator’s death in 1919.
- Undue influence is said to have been exerted over the WON, the probate of a will by final judgment prior to that of a
testator’s mind by Rosario as the will gave the tercio de libre codicil thereof a bar to the probate of said codicil. (With respect
disposicion to their illegitimate son and provided for the to the appeal of Macam regarding the probate of the will.)
payment to Rosario of 1,900 Spanish duros by way of - No, the fact that a will has been allowed without any
reimbursement for the expenses incurred by Rosario in opposition and the order allowing the same has become
taking care of him. final and executory is not a bar to the presentation and
probate of a codicil, provided it complies with all necessary
Whether or not Rosario Lopez exerted undue influence over formalities for executing a will required by the Civil Code.
the testator of such character as to vitiate his will. - It is not necessary that the will and the codicil be probated
- NO. The parties challenging the will on the ground of undue together, as the codicil may be concealed by an interested
influence were not able to discharge the burden of proving party and it may not be discovered until after the will has
the same. already been allowed.
- While it is shown that the testator entertained strong - This is because the purpose of the probate is merely to
affections for Rosario Lopez, it does not appear that her determine whether or not the will and the codicil meet all the
influence so overpowered and subjugated his mind as to legal requisites.
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ART. 841. A will shall be valid even though it ART. 844. An error in the name, surname, or
should not contain an institution of an heir, or circumstances of the heir shall not vitiate the
such institution should not comprise the institution when it is possible, in any other
entire estate, and even though the person so manner, to know with certainty the person
instituted should not accept the inheritance instituted.
or should be incapacitated to succeed. If among the persons having the same
In such cases the testamentary names and surnames, there is a similarity of
dispositions made in accordance with law circumstances in such a way that, even with
shall be complied with and the remainder of the use of the other proof, the person
the estate shall pass to the legal heirs. instituted cannot be identified, none of them
shall be an heir.
ART. 842. One who has no compulsory heirs may
dispose by will of all his estate or any part of REQUIREMENT FOR DESIGNATION OF HEIR
it in favor of any person having capacity to The heir, legatee or devisee must be identified in
succeed. the will with sufficient clarity to leave no doubt
One who has compulsory heirs may as to the testator’s intention.
dispose of his estate provided he does not The basic rule in testamentary succession always
contravene the provisions of this Code with is respect for and compliance with the testator’s
regard to the legitime of said heirs. wishes.
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Testamentary Succession – equality in shares of Cruz-Salonga, all of whom had been assumed and declared
full and half blood brothers and sisters unless the by Basilia as her own legally adopted children.
testator provides otherwise [Art848] - More than two years after her will was allowed to probate,
Intestacy – Proportion of 2:1 between full and half Basilia died.
blood brothers and sisters [Art1006], and only if the - The petitioners filed in the same proceedings a petition in
intervention for partition alleging in substance that they are
disqualification in Art992 does not apply.
the nearest of kin of Basilia, and that the five respondents
Perfecto Cruz, et al., had not in fact been adopted by the
Question – Does Art848 apply even to illegitimate decedent in accordance with law, in effect rendering these
brothers and sisters, in cases where the testator is of respondents mere strangers to the decedent and without
legitimate status and vice versa? YES. Art848 does not any right to succeed as heirs. According to petitioners, the
distinguish. language used in the will gives rise to the inference that the
late Basilia was deceived into believing that she was legally
bound to bequeath one-half of her entire estate to the
ART. 849. When the testator calls to the respondents Perfecto Cruz, et al. as the latter's legitime.
succession a person and his children they are
Whether or not the institution of heirs would retain efficacy in
all deemed to have been instituted the event there exists proof that the adoption of the said heirs
simultaneously and not successively. by the decedent is false.
- YES. If the impelling reason or cause for the institution of the
Article lays down the same rule as Arts. 846 and 847. respondents as her heirs was the testatrix's belief that under
Equality and Individuality of institution are presumed. the law she could not do otherwise, she did not make it
If the testator desires a different mode of known in her will. Surely if she was aware that succession to
apportionment, he should so specify. the legitime takes place by operation of law, independent of
her own wishes, she would not have found it convenient to
name her supposed compulsory heirs to their legitimes. Her
express adoption of the rules on legitimes should very well
ART. 850. The statement of a false cause for the indicate her complete agreement with that statutory scheme.
institution of an heir shall be considered as But even this, like the petitioners' own proposition, is highly
not written, unless it appears from the will speculative of what was in the mind of the testatrix when she
that the testator would not have made such executed her will.
institution if he had known the falsity of such - One fact prevails, however, and it is the decedent's will does
cause. not state in a specific or unequivocal manner the cause for
such institution of heirs. We cannot annul the same on the
GENERAL RULE – the falsity of the stated cause for basis of guesswork or uncertain implications. Such
the testamentary institution DOES NOT AFFECT the institution may be annulled only when one is satisfied, after
an examination of the will, that the testator clearly would not
validity or efficacy of the institution.
have made the institution if he had known the cause for it to
Reason – testamentary disposition is ultimately be false.
based on liberality. - Testacy is favored and doubts are resolved on its side,
especially where the will evinces an intention on the part of
the testator to dispose of practically his whole estate, as was
done in this case.
EXCEPTION – the falsity of the stated cause for - The legality of the adoption of the respondents by the
institution will set aside the institution if the following testatrix can be assailed only in a separate action brought
factors are present: for that purpose, and cannot be the subject of a collateral
1. Cause for institution is stated in the will attack.
2. Cause must be shown to be false - Before the institution of heirs may be annulled under article
3. It appears on the face of the will that if the 850 of the Civil Code, the following requisites must concur:
testator had known of the falsity of such cause, First, the cause for the institution of heirs must be stated in
he would not have instituted the heir. the will; second, the cause must be shown to be false; and
third, it must appear from the face of the will that the testator
CASE would not have made such institution if he had known the
Austria v. Reyes falsity of the cause.
- So compelling is the principle that intestacy should be
- Basilia Austria filed a petition for probate, ante mortem, of avoided and the wishes of the testator allowed to prevail,
that we could even vary the language of the will for the
her last will and testament. The probate was opposed by the
purpose of giving it effect. Where the testator was
petitioners Ruben, Consuelo and Lauro Austria, and still
possessed of testamentary capacity and her last will
others who, like the petitioner, are nephews and nieces of
executed free from falsification, fraud, trickery or undue
Basilia. This opposition was, however, dismissed and the
influence this Court held, it is its duty to give full expression
probate of the will allowed
to her will.
- The bulk of the estate of Basilia, admittedly, was destined
under the will to pass on to the respondents Perfecto Cruz,
Benita Cruz-Meñez, Isagani Cruz, Alberto Cruz, and Luz
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ART. 851. If the testator has instituted only one ART. 852 – the total of all the portions is less than the
heir, and the institution is limited to an aliquot whole estate or the whole disposable portion.
part of the inheritance, legal succession takes Therefore, a proportionate increase is necessary.
place with respect to the remainder of the The difference cannot pass by intestacy because
the testator’s intention is clear to give the instituted
estate.
heirs the entire amount.
The same rule applies if the testator has
instituted several heirs, each being limited to ART. 853 – the reverse occurs, the total exceeds the
an aliquot part, and all the parts do not cover whole estate or the whole disposable portion. Thus a
the whole inheritance. proportionate reduction must be made.
Suggested Rewording –
Art. 851. If the testator has instituted only
ART. 854. The preterition or omission of one,
one heir, and the institution is limited to an some, or all of the compulsory heirs in the
aliquot part of the inheritance, less than the direct line, whether living at the time of the
entire disposable portion, legal succession takes execution of the will or born after the death of
place with respect to the remainder of the the testator, shall annul the institution of heir;
estate. but the devises and legacies shall be valid
The same rule applies if the testator has insofar as they are not inofficious.
instituted several heirs, each being limited to an If the omitted compulsory heirs should
aliquot part, and all the parts do not cover the die before the testator, the institution shall be
whole inheritance. effectual, without prejudice to the right of
representation.
Moreover, this article states exactly the same rule laid
down in Art841. there is absolutely no need for the
redundancy. PRETERITION – means omission, but from what? The
answer to that question is the basic problem in
preterition.
ART. 852. If it was the intention of the testator Manresa’s Definition – “Preterition consists in the
that the instituted heirs should become sole omission of an heir in the will, either because he is not
heirs to the whole estate, or the whole free named, or, although he is named as a father, son, etc.,
portion, as the case may be, and each of them he is neither instituted as an heir or expressly
has been instituted to an aliquot part of the disinherited, nor assigned any part of the estate, thus
inheritance and their aliquot parts together do being tacitly deprived of his right to the legitime.
not cover the whole inheritance, or the whole
Castan’s Definition – “By preterition is meant the
free portion, each part shall be increased
omission in the will of any of the compulsory heirs,
proportionally. without being expressly disinherited. It is thus a tacit
deprivation of the legitime, as distinguished from
ART. 853. If each of the instituted heirs has been 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
case may be, each part shall be reduced will but the portion given to him by the will is less
proportionally. than his 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
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Based on these, the holding was that there • If the heir is not mentioned in the will nor
was NO PRETERITION. was a recipient of a donation inter vivos from the
testator, but not all of the estate is disposed of by
The reason was there was no TOTAL
the will – there is no preterition.
OMISSION, inasmuch as the heir received
The omitted heir in this instance would
something from the inheritance. The heir’s
receive something by intestacy, from the
remedy is not found in Art854 but in Arts.
portion not disposed of by the will [the
906 and 907 for Completion of Legitime.
vacant portion]. The right of the heir, should
Art. 906. Any compulsory heir to the vacant portion be less than his legitime,
whom the testator has left by any title will simply be to demand completion of his
less than the legitime belonging to legitime, under Articles 906 and 907.
him may demand that the same may
be fully satisfied. For there to be preterition, therefore, the heir in
Art. 907. Testamentary dispositions question must have received NOTHING from the
that impair or diminish the legitime of testator by way of:
1. Testamentary succession
the compulsory heirs shall be reduced
2. Legacy or devise
on petition of the same, insofar as
3. Donation inter vivos, or
they may be inofficious or excessive.
4. Intestacy
Preterition means therefore – TOTAL OMISSION IN
• If the heir is given a legacy or devise, THE INHERITANCE.
there is no preterition.
Should the value of the legacy or devise be WHO ARE INCLUDED WITHIN THE TERMS OF THE
less than the recipient’s legitime, his ARTICLE?
remedy is only for completion of legitime A compulsory heir in the direct line, whether living
under Articles 906 and 907. at the time of the execution of the will or born after
the death of the testator.
• If the heir received a donation inter vivos
from the testator – the better view is that there is 1. COMPULSORY HEIRS IN THE DIRECT LINE
no preterition –
Reason – donation inter vivos is treated as • Covers children or descendants, and in
an advance on the legitime under Articles proper cases [in default of children or
906, 909, 910 and 1062. descendants] parents or ascendants
• Surviving Spouse – does not fall within the
Art. 909. Donations given to children purview of this article because although a
shall be charged to their legitime. compulsory heir, is not in the direct line.
Donations made to strangers shall be • Under Art964 par2, direct line is that
charged to that part of the estate of which constituted by the series of degrees
the testator could have disposed by his among ascendants and descendants.
last will.
Insofar as they may be inofficious or 2. Are ILLEGITIMATE DESCENDANTS OR
may exceed the disposable portion, they ASCENDANTS within the coverage of
shall be reduced according to the rules “compulsory heirs in the direct line”?
established by this Code. • Manresa – YES, Scaevola – NO.
• Manresa’s seems to be the better opinion,
Art. 910. Donations which an since the law does not distinguish.
illegitimate child may have received
during the lifetime of his father or mother, 3. QUASI-POSTHUMOUS CHILDREN –
shall be charged to his legitime.
Should they exceed the portion that
• There is a flaw in the wording of the
article. The phrase “whether living at the
can be freely disposed of, they shall be
time of the execution of the will or born
reduced in the manner prescribed by this
after the death of the testator” does not,
Code.
by its terms, include those compulsory
heirs in the direct line born after the
Art. 1062. Collation shall not take
execution of the will but before the
place among compulsory heirs if the
testator’s death [los cuasi posthumous].
donor should have so expressly provided,
• However, such children are, without
or if the donee should repudiate the
doubt, to be included within the purview of
inheritance, unless the donation should be
the protection of this article.
reduced as inofficious.
4. PREDECEASE OF PRETERITED
COMPULSORY HEIR –
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• 2nd paragraph of Art 854 provides: If the so instituted a share in the inheritance. As to the
omitted compulsory heirs should die heir, the will is inexistent.
before the testator, the institution shall be In that case, the only provision in the will was the
effectual, without prejudice to the right of institution of the petitioner a universal heir. That
representation. institution, by itself, was held null and void.
• Should the preterited heir predecease or Therefore, intestate succession ensued.
be unworthy to succeed the testator, the
question of preterition of that heir However, this was muddled in the case of Solano
becomes moot. v. CA wherein it was ruled that the preterition of
• However, should there be a descendant of illegitimate children should annul the institution of
that heir who is himself preterited, then the heir “only insofar as the legitime of the omitted
the effects of preterition will arise. heirs is impaired”.
• Example – X has 2 legit kids: A and B. X Prof. Balane says this is not annulment but
makes a will which results in preterition of reduction, and this would erase the distinction
A. A dies before X but leaves a legit child, between the effect of preterition on the institution of
A-1, who is himself completely omitted the heir and its effect on legacies and devises.
from the inheritance [A-1 being entitled to
succeed X by representation]. Art854 will Fortunately, this was cleared up in Acain v. CA
apply, not because A was preterited but wherein it was held that “Preterition annuls the
because A-1 was preterited. institution of an heir and annulment throws open to
intestate succession the entire inheritance. The
5. ADOPTED CHILDREN only provisions which do not result in intestacy are
• Case of Acain v. IAC answers the the legacies and devises made in the will for they
question of whether an adopted child is should stand valid and respected, except insofar as
within the contemplation of this article as the legitimes are concerned.”
“compulsory heir in the direct line” and
rules in favor of the adopted child’s RE-CAP – the correct rule of preterition is that:
inclusion in the phrase. Preterition abrogates the institution of heir but
• An adopted child therefore, if totally respects legacies and devises insofar as these do
omitted in the inheritance, is preterited not impair the legitimes. Thus, if the will contains
within the contemplation of Art854 and only institutions of heirs and there is preterition,
can invoke its protection and TOTAL INTESTACY will result.
consequences. If there are legacies or devises and there is
• Acain’s logic is that since an adopted child preterition, the legacies or devises will stand, to the
is given by law the same rights as a extent of the free portion [merely to be reduced and
legitimate child, vis-à-vis the adopter, then not set aside, if the legitimes are impaired] but the
the adopted child can, in proper cases, institution of heirs, if any, will be swept away.
invoke Art854 in the same manner that a
legitimate child can. PRETERITION v. INEFFECTIVE DISINHERITANCE
• The law cited was Art39 of PD603 or the
Child and Youth Welfare Code as
Preterition is total omission from the inheritance,
without the heir being expressly disinherited. The
supplanted by Art189[1] of the Gamily
implied basis of the rule is inadvertent omission by
Code, likewise supplanted by Secs 17 and
the testator.
18 of RA8552 or the Domestic Adoption
Act of 1998. Thus, if the testator explicitly disinherits the heir,
this article will not apply.
EFFECT OF PRETERITION Should the disinheritance be ineffective, for
Annulment of the institution of an heir but validity of absence of one or other of the requisites for a valid
legacies and devisees to the extent that these disinheritance, the heir is simply entitled to demand
latter do not impair legitimes. his rightful share.
Distinction between heirs and legatees/devisees –
CASES
This in the only instance when there is still a
Reyes v. Baretto-Datu
practical effect in the distinction between an heir
and a legatee or devisee in Art782.
- Bibiano Barretto, married to Maria Gerardo, died and left his
According to the case of Nuguid v. Nuguid, properties to his daughters Salud and Milagros, except for
annulment of institution of heir means only the the usufruct of a fishpond which he reserved for his widow.
legacies and devises will merit consideration if - Maria Gerardo as administratrix, by a project of partition,
expressly given in the will. Art854 does not mean distributed the estate and delivered the shares of the heirs.
that the mere institution of a universal heir in a will Salud took immediate possession of her share and procured
– void because of preterition – would give the heir the issuance of land titles to her name.
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- Upon Maria Gerardo’s death, it was discovered that she Whether the estate should pertain to Duncan and Garcia in
executed 2 wills, in the first she instituted both Salud and equal shares or whether the inheritance of Duncan as
Milagros as heirs and in the second she revoked the same instituted heir should be merely reduced to the extent
and left all her properties to Milagros alone. The 2nd will was necessary to cover the legitime of Garcia, equivalent to ¼ of
probated and it was proved that Salud was not the daughter the entire estate.
of Maria. - In order that the right of a forced heir may be limited only to
- Having lost her share in the estate of Maria, Salud went after the completion of his legitime (instead of the annulment of
the remnant of Bibiano’s estate, which was given in usufruct the institution of heirs) is it necessary that he should be
to Maria, by filing an action for the recovery of ½ thereof. recognized or referred to in the will as heir?
- This action afforded Milagros an opportunity to set up her - The SC set aside the project of partition. It remanded the
right of ownership not only of the fishpond but sought case with instruction to partition the hereditary estate by
recovery of all the properties acquired by Salud from giving to Garcia no more than the portion corresponding to
Bibiano, because Salud is a spurious heir not entitled to any her legitime, equivalent to ¼ of the hereditary estate.
share. - The case is not a case of preterition but a case of
- Milagros also alleged that since what was allotted in her completion of legitime. The institution in the will not be
father’s will to her was smaller than her legitime, then there annulled. There would be no intestacy.
is preterition, thus annulling the institution of heirs in the will. - The Court mentioned Manresa and 3 decisions of the SC of
Spain. In each of those case, the testator left to one who
Whether Salud may inherit from Bibiano was a forced heir a legacy worth less than the legitime, but
- Yes. Salud admittedly has been instituted heir in the without referring to the legatee as an heir or even as a
Bibiano’s will together with Milagros. Hence, the partition relative, and will the rest of the estate to other persons. It
had between them could not be one such had with a party was held that in such cases, the heir could not ask that the
who was not believed to be an heir without really being one, institution of heirs be annulled entirely, but only that the
and was not null and void. The legal precept does not legitime be completed.
speak of children or descendants but of heirs, and the fact - The Court viewed such as in consonance with the
that Salud happened not to be a daughter of the testator expressed wishes of Edward as may be observed from the
does not preclude her being one of the heirs expressly provisions of his will. He refused to acknowledge Garcia as
named in his testament; For Bibiano was at liberty to assign his natural daughter and limited her share to a legacy of Php
the free portion of his estate to whomsoever he choose. 3600. The fact that she was subsequently declared judicially
While the ½ share assigned to Salud impinged on the to possess such status is no reason to assume that had the
legitime of Milagros, Salud did not for that reason cease to judicial declaration come during his lifetime his subjective
be a testamentary heir of Bibiano. attitude towards her would have undergone any change and
that he would have will his estate equally to her and to
Whether there was preterition Duncan, who alone was expressly recognized by him
- None. There was no preterition even if Milagros was allotted - There is no preterition if the heir is given a legacy or devise.
a smaller share than her legitime because there was no total - Art. 854 of the NCC: The preterition or omission of one,
omission of a forced heir. some, or all of the compulsory heirs in the direct line,
- If the heir in question is instituted in the will but the portion whether living at the time of the execution of the will or born
given to him by the will is less than his legitime, there is no after the death of the testator, shall annul the institution of
preterition. heir; but the devises and legacies shall be valid insofar as
they are not inofficious.
Aznar v. Duncan - Art. 906 of the NCC: Any compulsory heir whom the testator
has left by any title less than the legitime belonging to him
- Edward Christensen, a citizen of California with domicile in may demand that the same be fully satisfied.
the Philippines, died leaving a will. - Preterition is the omission of the heir in the will, either by
- The will was admitted to probate. In the same decision, the not naming him at all or, while mentioning him as father,
court declared that Maria Helen Christensen Garcia was a son, etc., by not instituting him as heir without disinheriting
natural child of Edward. him expressly, nor assigning to him some part of the
- In his will, Edward expressly mentioned that he bequeath properties.
unto Helen Garcia Php 3,600 notwithstanding the fact she is - Whether the testator gave a legacy to a person, whom he
not in any way related to him, nor has she been at any time characterized in the testamentary provision as not related to
adopted by him. him, but later his person was judicially declared to be his
- The court then issued an order approving the project acknowledged natural child, the case is not a case of
partition submitted by the executor wherein the properties of preterition but a case of completion of legitime. The
the estate were divided equally between Maria Lucy institution in the will not be annulled. There would be no
Christensen Duncan, whom the testator had expressly intestacy.
recognized in his will as his natural daughter and Helen
Garcia, who had been judicially declared as such after his Acain v. IAC
death.
- The said order was based on the proposition that since - Constantino Acain filed with the RTC a petition for the
Garcia had been preterited in the will, the institution of probate of the will of the late Nemesio Acain.
Duncan as heir was annulled, and hence the properties - In the said will, Nemesio instituted his brother Segundo as
passed to both of them as if the deceased had died the heir. In case Segundo pre-deceased him, Segundo’s
intestate. Thus, Duncan appealed. children (Constantino and his brothers & sisters) would
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receive Nemesio’s share in the conjugal property of neither instituted as heirs nor are expressly disinherited."
Nemesio and Rosa. Disinheritance, in turn, "is a testamentary disposition
- Segundo pre-deceased Nemesio. Now, the children of depriving any compulsory heir of his share in the legitime for
Segundo are claiming to be heirs of Nemesio. a cause authorized by law."
- Rosa (the widow) and Virginia Fernandez (a legally adopted - Preterition under Article 854 of the Civil Code, we repeat,
daughter of Nemesio) opposed the probate. "shall annul the institution of heir". This annulment is in toto,
unless in the will there are, in addition, testamentary
WON Rosa and Virginia were preterited. dispositions in the form of devises or legacies. In ineffective
- As to the widow (Rosa), Art. 854 does not apply, although disinheritance under Article 918 of the same Code, such
she is a compulsory heir. disinheritance shall also "annul the institution of heirs", put
- Even if the surviving spouse is a compulsory heir, there is no only "insofar as it may prejudice the person disinherited",
preterition even if she is omitted from the inheritance, as she which last phrase was omitted in the case of preterition.
is not in the direct line. Better stated yet, in disinheritance the nullity is limited to that
- As to the adopted child (Virginia), there is preterition since portion of the estate of which the disinherited heirs have
she was totally omitted in the inheritance. been illegally deprived.
- The Child and Youth Welfare Code gives an adopted
person the same rights and duties as if he were a legitimate
child of the adopter and makes the adopted person a legal
heir of the adopter. ART. 855. The share of a child or descendant
- Since preterition annuls the institution of heir and no devises omitted in a will must first be taken from the
or legacies having been provided in the will, the probate of part of the estate not disposed of by the will,
the will must be denied. An intestate settlement of the estate if any; if that is not sufficient, so much as may
should proceed. be necessary must be taken proportionally
- Art. 854, NCC: The preterition or omission of compulsory from the shares of the other compulsory
heirs in the direct line, whether living at the time of the heirs.
execution of the will or born after the death of the testator,
shall annul the institution of heir; but the devises and Article is redundant and completely unnecessary of it is
legacies shall be valid insofar as they are not inofficious.
made to apply to cases of preterition. If there is
- Preterition consists in the omission in the testator’s will of preterition, only Art854 need be applied.
the forced heirs because they were not mentioned therein, Proper Application of Art855 – in cases where a
or though mentioned, they are neither instituted as heirs not compulsory heir is not preterited but left something
are expressly disinherited. [because not all the estate is disposed of by will] less
than his legitime. Art855 really talks of a completion of
Nuguid v. Nuguid legitime.
- Rosario Nuguid died, single without descendants but was HOW TO FILL UP COMPULSORY HEIR’S IMPAIRED
survived by her legitimate parents and 6 legitimate siblings. LEGITIME?
- One of which was instituted as the universal heir and he filed
From the portion of the estate left undisposed of by
an action for probate of the decedent’s will which was
will.
opposed by her parents on the ground that they were
preterited and thus the institution of the universal heir is From the shares of the testamentary heirs,
void. legatees and devisees, proportionally.
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Rabadilla v. CA
ART. 856. A voluntary heir who dies before the
testator transmits nothing to his heirs. - Aleja Belleza, in a codicil appended to her Last Will and
A compulsory heir who dies before the Testament, bequeathed a lot to Dr. Jorge Rabadilla subject
testator, a person incapacitated to succeed, to certain conditions:
and one who renounces the inheritance, shall A.) That should Jorge die before the testator, the
property shall be inherited by the latter’s spouse and
transmit no right to his own heirs except in
children
cases expressly provided for in this Code. B.) That if the ownership of the property is finally
transmitted to Jorge, he shall be liable to deliver until
Observations on the Article he dies 75 piculs of sugar a year to Maria Belleza
Inaccurate and misleading because it suggests that while she is still alive.
there are exceptions to the rule that an heir, in C.) That in case of Jorge’s death, his heirs shall also be
case of predecease, incapacity or renunciation, imposed the same obligation.
transmits nothing to his own heirs. D.) And that if the heir shall later sell, lease, mortgage
• This rule of non-transmission is this said Lot, the buyer, lessee, mortgagee, shall
ABSOLUTE and there is no exception to it. have also the obligation to deliver yearly 100 piculs of
• Representation does not constitute an sugar to Maria Belleza, provided that the buyer,
lessor or mortgagor be near descendants and sister
exception because in representation the
of the testator.
person represented does not transmit - The will also provided that in case the buyer, lessor or
anything to his heirs. Representation is rather mortgagor fails to fulfill said obligations, Maria Belleza is
a form of subrogation. entitled to forfeit the lots in favor of the testator’s
It says too much because the article is in the descendants.
chapter on testamentary succession under - Jorge Rabadilla died, and his spouse and children
institution of heir, therefore it should speak only of succeeded him.
voluntary or testamentary heirs. - Now, Maria Belleza filed a complaint against Jorge’s heirs
It says too little because it does not mention legal due to alleged violations of the Codicil and asked for the
or intestate heirs nor does it provide for cases of property to be reconveyed to the near descendants of Aleja
disinheritance. Belleza on the ground that:
A.) the lot was mortgaged to PNB, not a near
Rather, the complete statement of the rule is – descendant of the testator,
B.) that the heirs failed to deliver the piculs of sugar beg.
An heir, whether compulsory, voluntary or legal,
1985,
transmits NOTHING to his heirs in case of
C.) that PNB also did not comply with the obligation to
predecease, incapacity, renunciation or deliver 100 piculs of sugar/year.
disinheritance. However, in case of predecease or - RTC dismissed the claim. On Appeal, the CA ruled that
incapacity of compulsory or legal heirs, as well as indeed the heirs violated the obligations imposed upon them
disinheritance of compulsory heirs, the rules on and therefore the land should be seized and reconveyed to
representation shall apply. the estate of Aleja. However, they should file a separate
proceeding to re-open the estate and have it distributed to
Outline of Rules Aleja’s heirs.
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- Belleza Appealed. - The other two siblings, Rebecca Viado-Non and Delia Viado
are the petitioners in this case.
Whether or not the Article 882 of the CC on modal institutions - As the two parties lived in the Isarog property, Alicia and her
govern the disposition rather than the provisions on institution two children demanded Rebecca and Delia to vacate;
through simple substitution. Rebecca and Delia raised co-ownership as a defense.
- The SC affirmed the decision of the Court of Appeals in - Alicia claimed absolute ownership as evinced by a deed of
applying Art 882 of the Civil Code.
donation in which the late Julian Viado donated his conjugal
- The Court held that the disposition in question in favor of
share of the property to Alicia’s deceased husband.
Jorge Rabadilla could neither be simple substitution or
fideicommissary. - There was also a deed of extrajudicial settlement where
- In simple substitutions, the second heir takes the inheritance Rebecca Viado-Non and the late Leah Viado (without Delia
in default of the first heir by reason of incapacity, Viado’s participation) waived their rights and interests over
predecease or renunciation. their share of the property inherited from their mother
- In the case under consideration, the provisions of subject Virginia.
Codicil do not provide for said 3 conditions. What the Codicil - Thus, the property was titled in the name of the heirs of Nilo
provides is that, should Dr. Jorge Rabadilla or his heirs not Viado.
fulfill the conditions imposed in the Codicil, the property - An action for partition was brought by Rebecca Viado-Non
referred to shall be seized and turned over to the testatrix's and Delia Viado in which the court ruled in favor of Alice and
near descendants. her children.
- It could not also be a fideicommissary because the element
Whether or not the deeds were valid despite allegations of
that the first heir is obliged to preserve and transmit the
fraud, forgery and undue influence.
property to a second heir is not present.
- YES, on account of the following:
- In this case, the instituted heir is in fact allowed under the
- First, while asserting the employment of fraud, forgery and
Codicil to alienate the property provided the negotiation is
undue influence in procuring the signatures of the parties to
with the near descendants or the sister of the testatrix.
the deeds of donation and of extrajudicial settlement,
Without the duty to preserve, there is no fideicommissary
Rebecca Viado-Non and Delia Viado are vague on how and
substitution.
in what manner those supposed vices occurred.
- Also, the second heir or the fideicommissary to whom the
- Second, there no proof shown as to why Julian Viado should
property is transmitted must not be beyond one degree from
the first heir or the fiduciary. be held incapable of exercising sufficient judgment in ceding
- In this case, the second heir or the fideicommissary to whom his rights and interest over the property to Nilo Viado.
the property is transmitted must not be beyond one degree - Third, the fact alone that the two deeds were registered only
from the first heir or the fiduciary. five (5) years after their execution would not affect their
- The disposition was in the nature of modal institutions. Here, validity or point to fraud.
the testator imposes a charge upon the instituted heir
without, however, affecting the efficacy of such institution. Whether or not there was preterition in the deed of extrajudicial
- In conditional substitution however, the efficacy of the settlement with respect to the retardate Delia Viado.
inheritance is subject to the condition. - YES. The exclusion of Delia Viado has the effect of
- In case of doubt, the institution must be considered as modal preterition.
and not institutional. - This kind of preterition, however, in the absence of fraud and
- In simple substitutions, the second heir takes the inheritance bad faith, does not justify a collateral attack on the new title.
in default of the first heir by reason of incapacity, - Article 1104 provides the remedy: where the preterition is
predecease or renunciation. not attended by bad faith and fraud, the partition shall not be
- Elements in Fideicommissary Sub: rescinded but the preterited heir shall be paid the value of
the share pertaining to her.
A) the first heir is obliged to preserve and transmit the - Article 1104 provides: where the preterition is not attended
property to a second heir by bad faith and fraud, the partition shall not be rescinded
B) the second heir or the fideicommissary to whom the but the preterited heir shall be paid the value of the share
property is transmitted must not be beyond one pertaining to her.
degree from the first heir or the fiduciary.
- In modal institution, the testator states (1) the object of the
institution, (2) the purpose or application of the property left
by the testator, or (3) the charge imposed by the testator SECTION 3 – SUBSTITUTION OF HEIRS
upon the heir. A "mode" imposes an obligation upon the heir
or legatee but it does not affect the efficacy of his rights to Art. 857. Substitution is the appointment of
the succession. another heir so that he may enter into the
inheritance in default of the heir originally
Non v. CA
instituted.
- Deceased spouses Julian and Virginia Viado owned several
properties, among them a house and lot located at Isarog The definition of substitution is incomplete because it
St., La Loma, Quezon City; they had four children. covers only simple substitution and excludes the
- Leah Viado Jacobs and Nilo Viado both died in 1987, with fideicommissary. In the fideicommissary, the 2nd heir
Nilo leaving behind his wife, Alicia, and two children, herein does not succeed in default, but AFTER the first.
respondents.
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to a period, and that right passes to his born if it is alive at the time it is completely
own heirs should he die before the delivered from the mother's womb. However, if
fiduciary’s right expires. the fetus had an intra-uterine life of less than
seven months, it is not deemed born if it dies
within twenty-four hours after its complete
3. The 2nd heir must be 1 degree from the first delivery from the maternal womb.
heir
• Qualified – according to Articles 1024-
• Means 2 things
1034.
a) Only one transmission/transfer is
allowed, from the first heir to the Art. 1024. Persons not incapacitated by law may
second heir succeed by will or ab intestato.
b) Second heir must be in the first The provisions relating to incapacity by will are
equally applicable to intestate succession.
degree of relationship with the first
heir. The second heir must either be Art. 1025. In order to be capacitated to inherit, the
a child or parent of the first heir heir, devisee or legatee must be living at the
moment the succession opens, except in case of
representation, when it is proper.
4. Dual obligation imposed upon the 1st heir to: A child already conceived at the time of the
a) Preserve the property, and death of the decedent is capable of succeeding
b) To transmit it after the lapse of the provided it be born later under the conditions
period to the fideicommissary heir. prescribed in article 41.
Art. 1026. A testamentary disposition may be made to
• This requisite is the essence of the the State, provinces, municipal corporations,
fideicomisaria. This makes the position of private corporations, organizations, or
the fiduciary basically that of a associations for religious, scientific, cultural,
usufructuary, with the right to use and educational, or charitable purposes.
All other corporations or entities may succeed
enjoy the property but WITHOUT JUS under a will, unless there is a provision to the
DISPONENDI. contrary in their charter or the laws of their
• If there is no absolute obligation to creation, and always subject to the same.
preserve and transmit, there is no Art. 1027. The following are incapable of succeeding:
fideicommissary substitution. (1) The priest who heard the confession of the
• The institution is not necessarily void, it testator during his last illness, or the minister
may be valid as some other disposition of the gospel who extended spiritual aid to him
but it is not a fideicomisaria. during the same period;
• In PCIB v. Escolin, the institution was held (2) The relatives of such priest or minister of the
to be a simultaneous institution, a gospel within the fourth degree, the church,
order, chapter, community, organization, or
resolutory condition on the part of the institution to which such priest or minister may
husband while subject to a suspensive belong;
condition on the part of the brothers- and (3) A guardian with respect to testamentary
sisters-in-law and not a fideicomisaria dispositions given by a ward in his favor before
because no obligation is imposed upon the final accounts of the guardianship have
the husband to preserve the estate or any been approved, even if the testator should die
part thereof for anyone else. after the approval thereof; nevertheless, any
• If the testator DID NOT specify a day provision made by the ward in favor of the
guardian when the latter is his ascendant,
when the fiduciary will deliver the property descendant, brother, sister, or spouse, shall be
to the fideicomissary, or when the time of valid;
delivery is in doubt, it shall be understood (4) Any attesting witness to the execution of a
to have been left to the fiduciary’s will, the spouse, parents, or children, or any
discretion, which means the delivery one claiming under such witness, spouse,
should be upon the FIDUCIARY’S parents, or children;
DEATH. This is based on the presumption (5) Any physician, surgeon, nurse, health officer
that the testator intended the fiduciary to or druggist who took care of the testator during
his last illness;
enjoy the property during his lifetime.
(6) Individuals, associations and corporations not
permitted by law to inherit.
5. Both heirs must be living and disqualified to
succeed at the time of the testator’s death. Art. 1028. The prohibitions mentioned in article 739,
concerning donations inter vivos shall apply to
• Living – according to Articles 40-41 testamentary provisions.
Art. 40. Birth determines personality; but the Art. 1029. Should the testator dispose of the whole or
conceived child shall be considered born for all part of his property for prayers and pious works
purposes that are favorable to it, provided it be for the benefit of his soul, in general terms and
born later with the conditions specified in the without specifying its application, the executor,
following article. with the court's approval shall deliver one-half
Art. 41. For civil purposes, the fetus is considered thereof or its proceeds to the church or
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denomination to which the testator may belong, judgment is rendered, and in the case falling
to be used for such prayers and pious works, and under No. 4, the expiration of the month allowed
the other half to the State, for the purposes for the report.
mentioned in Article 1013. If the institution, devise or legacy should be
Art. 1030. Testamentary provisions in favor of the conditional, the time of the compliance with the
poor in general, without designation of particular condition shall also be considered.
persons or of any community, shall be deemed
limited to the poor living in the domicile of the • NOTE – this 2-fold requirement is to be
testator at the time of his death, unless it should met only upon the testator’s death, and this applies not
clearly appear that his intention was otherwise. only to the fiduciary but to the second heir as well.
The designation of the persons who are to be
considered as poor and the distribution of the
property shall be made by the person appointed
by the testator for the purpose; in default of such
person, by the executor, and should there be no • Thus, the 2nd heir need not survive the first
executor, by the justice of the peace, the mayor, heir, if the 2nd heir dies before the first heir, the 2nd
and the municipal treasurer, who shall decide by heir’s own heirs merely take his place.
a majority of votes all questions that may arise.
In all these cases, the approval of the Court of
First Instance shall be necessary.
The preceding paragraph shall apply when the ART. 864. A fideicommissary substitution can
testator has disposed of his property in favor of never burden the legitime.
the poor of a definite locality.
Art. 1031. A testamentary provision in favor of a Legitime passes by strict operation of law, therefore the
disqualified person, even though made under the testator has no power over it.
guise of an onerous contract, or made through an
intermediary, shall be void.
Art. 1032. The following are incapable of succeeding
by reason of unworthiness: ART. 865. Every fideicommisary substitution
(1) Parents who have abandoned their children or must be expressly made in order that it may
induced their daughters to lead a corrupt or be valid.
immoral life, or attempted against their virtue; The fiduciary shall be obliged to deliver
(2) Any person who has been convicted of an
attempt against the life of the testator, his or the inheritance to the second heir, without
her spouse, descendants, or ascendants; other deductions than those which arise from
(3) Any person who has accused the testator of a legitimate expenses, credits and
crime for which the law prescribes improvements, save in the case where the
imprisonment for six years or more, if the
accusation has been found groundless;
testator has provided otherwise.
(4) Any heir of full age who, having knowledge of
the violent death of the testator, should fail to FIDEICOMISARIA SHOULD BE EXPRESSLY
report it to an officer of the law within a month, IMPOSED.
unless the authorities have already taken 2 ways of making an express imposition –
action; this prohibition shall not apply to cases
wherein, according to law, there is no
1. By the use of the term fideicommissary or
obligation to make an accusation; 2. By imposing upon the first heir the absolute
(5) Any person convicted of adultery or obligation to preserve and to transmit to the
concubinage with the spouse of the testator; second heir.
(6) Any person who by fraud, violence,
intimidation, or undue influence should cause
Allowable Deductions
the testator to make a will or to change one
already made; 1. GR – fiduciary should deliver property INTACT
(7) Any person who by the same means prevents and UNDIMINISHED to the fideicommissary heir
another from making a will, or from revoking upon the arrival of the period.
one already made, or who supplants, conceals, 2. The only Deductions allowed, in the absence
or alters the latter's will; of a contrary provision in the will are –
(8) Any person who falsifies or forges a supposed a) Legitimate expenses – only
will of the decedent. necessary and useful expenses and NOT
Art. 1033. The cause of unworthiness shall be without ornamental expenses
effect if the testator had knowledge thereof at b) Credits
the time he made the will, or if, having known of c) Improvements - only necessary and
them subsequently, he should condone them in useful improvements and NOT ornamental
writing.
improvements
Art. 1034. In order to judge the capacity of the heir,
devisee or legatee, his qualification at the time of Damage or Deterioration to Property
the death of the decedent shall be the criterion.
In cases falling under Nos. 2, 3, or 5 of Article If caused by a fortuitous event or ordinary wear and
1032, it shall be necessary to wait until final tear – fiduciary is not liable
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Provisions that shall NOT TAKE EFFECT ART. 869. A provision whereby the testator leaves
1. Fideicommissary substitutions which are not to a person the whole or part of the
made in an express manner inheritance, and to another the usufruct, shall
• Lack of this element does not, by that fact be valid. If he fives the usufruct to various
alone, nullify the institution. It only means persons, not simultaneously, but
that the institution is not a fideicomisaria. successively, the provisions of Article 863
shall apply.
2. Perpetual prohibition to alienate, and even a
temporary one, beyond the limit fixed in article
If the testator institutes successive usufructuaries, there
863.
can only be two usufructuaries, one after the other, and
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3. RECIPROCAL
If the heirs in a will are given unequal
shares, and they are reciprocal substitutes of
each other, the substitute shall, in addition to his
given share, acquire the share of the heir who
he is substituting for due to predecease,
renunciation or incapacity.
The second sentence of Art861 provides
for Proportionate Accrual. If there are more than
1 heir instituted, and they are reciprocally
substituted, the substitutes will acquire the
share of the original heir in the same proportion
as they were given in the testamentary
disposition.
4. FIDEICOMMISSARY
Elements of a Fideicommissary
1) A 1st heir who takes the property
upon the testator’s death
2) A 2nd heir who takes the property
subsequently from the fiduciary
3) The 2nd heir must be 1 degree
from the first heir
4) Dual obligation imposed upon the
1st heir to:
a. Preserve the property, and
b. To transmit it after the lapse of the
period to the fideicommissary heir.
5) Both heirs must be living and
disqualified to succeed at the time of the
testator’s death.
Fideicommissary substitution should be
Ramirez v. Ramirez
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PCIB v. Escolin
SECTION 4 – CONDITIONAL TESTAMENTARY
- Linnie Jane Hodges died in Iloilo leaving a will wherein she DISPOSITIONS AND TESTAMENTARY
bequeathed all of her propertied to her husband, Charles DISPOSITIONS WITH A TERM
Newton Hodges.
- The will contained a disposition saying “at the death of my GENERAL PROVISIONS
said husband, I give, devise and bequeath all of the rest,
residue and remainder of my estate, both real and personal,
wherever situation to be equally dived among my brothers
ART. 871. The institution of an heir may be made
and sisters, share and share alike. conditionally, or for a certain purpose or
- Charles was appointed executor, when he died Joe Hodges cause.
and Fernando Mirasol replaced him, which in turn was
replaced by PCIB pursuant to an agreement of all the heirs
of Hodges. 3 KINDS OF TESTAMENTARY DISPOSITIONS
- The Higdons, composed of brothers and sisters of Linnie 1. Conditional dispositions
now claims their share to her estate. 2. Dispositions with a term
- PCIB, however, contends that there was no substitution in
3. Dispositions with a mode [modal dispositions]
this case and that the testamentary disposition in favor of the
brothers and sisters are inoperative and invalid.
Inaccuracies in Section heading and wording of this
Whether there is substitution. article
- None. There is no vulgar substitution because there is not Incomplete Section Heading – should include4
provision in the will for either: 1. predecease of the testator modal dispositions
by the designated heir, 2. refusal or 3. incapacity of the latter Incomplete wording of Article – does not include
to accept the inheritance as required by art. 859. dispositions with a term
- There is neither a fideicommissary substitution because no
obligation is imposed thereby upon Charles to preserve the Definitions
estate or any part thereof for anyone else. CONDITION – defined obliquely in Art1179 par1.
Art. 1179. Every obligation whose
Whether the disposition in favor of the brothers and sisters is performance does not depend upon a
inoperative future or uncertain event, or upon a past
- No. The brothers and sisters of Mrs. Hodges are not event unknown to the parties, is
substitutes for Charles because, under her will, they are not demandable at once.
to inherit what Hodges cannot, would no or may not inherit, Every obligation which contains a
but would inherit what he would not dispose of from his resolutory condition shall also be
inheritance. demandable, without prejudice to the
- Therefore, they are also heirs instituted simultaneously with effects of the happening of the event.
Charles, subject to certain conditions, partially resolutory
insofar as Hodges was concerned and correspondingly
TERM – defined obliquely in Art1173 pars 1 & 3
suspensive with reference to his brothers and sisters-in-law.
Art. 1193. Obligations for whose fulfillment a
- Hence, while Charles could completely and absolutely
day certain has been fixed, shall be
dispose of her estate during his lifetime, all his rights to what
demandable only when that day comes.
may remain upon his death would then go his brothers and
Obligations with a resolutory period
sisters-in-law.
take effect at once, but terminate upon
- If no obligation is imposed upon the first heir to preserve the
arrival of the day certain.
property and to transmit it to the second heir, then there is
A day certain is understood to be that
no fideicomisaria.
which must necessarily come, although it
may not be known when.
If the uncertainty consists in whether
the day will come or not, the obligation is
conditional, and it shall be regulated by
the rules of the preceding Section.
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that the instituted heir or his heirs give thereof which is not affected by the impossible or
security for compliance with the wishes of unlawful condition shall be valid.
the testator and for the return of anything The condition not to do an impossible thing
he or they may receive, together with its shall be considered as not having been agreed
fruits and interests, if he or they should upon.
disregard this obligation.
Reason for difference in rule
Proper Order of Provisions in this Section Testamentary dispositions and donations are both
1. General provisions – Arts 871 and 872 gratuitous and spring from the grantor’s liberality.
2. Conditions – Arts 873, 874, 875, 876, 877, 883 The imposition of a condition does not displace
par. 2, 879, 880, 881 and 884 liberality as the basis of the grant.
3. Terms – Arts 878 and 885 On the other hand, in obligations which are
4. Modes – Arts 882 and 883 par.1 onerous, the condition that is imposed becomes an
integral part of the causa of the obligation. The
GENERAL PROVISIONS elimination of that condition for being impossible or
Art871 – The right of the testator to impose conditions, illegal results in a failure of cause.
terms or modes springs from testamentary freedom. If
he has the right to dispose of his estate mortis causa,
then he has the right to make the disposition subject to ART. 874. An absolute condition not to contract a
a condition, term or mode.
first or subsequent marriage shall be
considered as not written unless such
condition has been imposed on the widow or
ART. 872. The testator cannot impose any charge,
widower by the deceased spouse or by the
condition or substitution whatsoever upon
latter’s ascendants or descendants.
the legitimes prescribed in this Code. Should
Nevertheless, the right of usufruct, or an
he do so, the same shall be considered as not
allowance or some personal prestation may
imposed.
be devised or bequeathed to any person for
the time during which he or she should
The legitime passes by strict operation of law,
independent of the testator’s will. This article is a logical remain unmarried or in widowhood.
consequence of that principle.
This article is echoed by Art904 par2. Conditions prohibiting marriage
If a first marriage is prohibited – condition always
considered as not imposed
DISPOSITION WITH CONDITIONS If subsequent marriage is prohibited
1. If imposed by the deceased spouse or by
– MAY BE BOTH RESOLUTORY his/her ascendants or descendants – valid
OR SUSPENSIVE. 2. If imposed by anyone else – considered as not
written
ART. 873. Impossible conditions and those
contrary to law or good customs shall be The 2nd paragraph of the article may provide the
considered as not imposed and shall in no testator, if he so desires, a means of terminating the
manner prejudice the heir, even if the testator testamentary benefaction should the heir contract
should otherwise provide. marriage, even a first one. The wording of the
disposition will be crucial, it should not be so worded as
to constitute a prohibition forbidden in the first
The impossible or illegal condition is simply considered
paragraph.
as not written. The testamentary disposition itself is not
annulled; on the contrary it becomes PURE.
Necessity of Caución Muciana – since this condition,
assuming it is validly imposed, is NEGATIVE in nature,
The rule on Donations is the same. – considered as not
a Caución Muciana is required, as in Art879.
imposed
Art. 727. Illegal or impossible conditions in simple
Condition to contract marriage – This article does not
and remuneratory donations shall be considered as
prohibit the imposition of a condition to marry, either
not imposed.
with reference to a particular person or not.
On the other hand, the rule in Obligations is different. –
Neither does this article declare void a relative
annuls the obligation
prohibition.
Art. 1183. Impossible conditions, those contrary to
good customs or public policy and those prohibited
by law shall annul the obligation which depends
upon them. If the obligation is divisible, that part ART. 875. Any disposition made upon the
condition that the heir shall make some
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provision in favor of the latter of the testator 2. Casual Condition – one that depends on the
or of any other person shall be void. will of a third person or on chance
3. Mixed Condition – one that depends partly on
Scriptura Captatoria – Legacy-hunting dispositions, the will of the heir/devisee/legatee and partly
whether to heirs or legatees, are void. either on the will of a third person or chance.
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• If not an interested party – not Art. 1179. Every obligation whose performance does
applicable not depend upon a future or uncertain event, or
upon a past event unknown to the parties, is
demandable at once.
Every obligation which contains a resolutory
ART. 880. If the heir be instituted under a condition shall also be demandable, without
suspensive condition or term the estate shall prejudice to the effects of the happening of the
event.
be placed under administration until the
condition is fulfilled, or until it becomes Art. 1180. When the debtor binds himself to pay when
his means permit him to do so, the obligation shall
certain that it cannot be fulfilled, or until the be deemed to be one with a period, subject to the
arrival of the term. provisions of Article 1197.
The same shall be done if the heir does Art. 1181. In conditional obligations, the acquisition of
not give the security required in the rights, as well as the extinguishment or loss of
preceding article. those already acquired, shall depend upon the
happening of the event which constitutes the
condition.
Art. 1182. When the fulfillment of the condition
depends upon the sole will of the debtor, the
conditional obligation shall be void. If it depends
ART. 881. The appointment of the administrator upon chance or upon the will of a third person, the
of the estate mentioned in the preceding obligation shall take effect in conformity with the
article, as well as the manner of provisions of this Code.
administration and the rights and obligations Art. 1183. Impossible conditions, those contrary to
good customs or public policy and those prohibited
of the administrator shall be governed by the by law shall annul the obligation which depends
Rules of Court. upon them. If the obligation is divisible, that part
thereof which is not affected by the impossible or
Between the time of the testator’s death and the time of unlawful condition shall be valid.
the fulfillment of the suspensive condition or of the The condition not to do an impossible thing shall
certainty of its non-occurrence – property is to be be considered as not having been agreed upon.
placed under administration. Art. 1184. The condition that some event happen at a
1. If condition happens – the property will be determinate time shall extinguish the obligation as
turned over to the instituted heir soon as the time expires or if it has become
2. If it becomes certain that condition will not indubitable that the event will not take place.
happen – property will be turned over to a Art. 1185. The condition that some event will not
secondary heir [if there is one] or to the happen at a determinate time shall render the
intestate heirs, as the case may be. obligation effective from the moment the time
indicated has elapsed, or if it has become evident
that the event cannot occur.
Not applicable to institutions with a TERM – despite the If no time has been fixed, the condition shall be
wording of the article, it should not be applied to deemed fulfilled at such time as may have probably
institutions with a term, which are governed by Art885 been contemplated, bearing in mind the nature of
par 2. Otherwise, there will be an irreconcilable conflict the obligation.
with that article, which mandates that before the arrival Art. 1186. The condition shall be deemed fulfilled
of the term, the property should be given to the legal when the obligor voluntarily prevents its fulfillment.
heirs. Art. 1187. The effects of a conditional obligation to
give, once the condition has been fulfilled, shall
nd
2 paragraph – the property shall be in the executor’s retroact to the day of the constitution of the
or administrator’s custody until the heir furnishes the obligation. Nevertheless, when the obligation
caucion muciana. imposes reciprocal prestations upon the parties, the
fruits and interests during the pendency of the
Procedural rules governing appointment of condition shall be deemed to have been mutually
compensated. If the obligation is unilateral, the
administrator – Rules 77-90 RoC.
debtor shall appropriate the fruits and interests
received, unless from the nature and circumstances
of the obligation it should be inferred that the
ART. 884. Conditions imposed by the testator intention of the person constituting the same was
upon the heirs shall be governed by the rules different.
In obligations to do and not to do, the courts shall
established for conditional obligations in all determine, in each case, the retroactive effect of
matters not provided for by this Section. the condition that has been complied with.
Art. 1188. The creditor may, before the fulfillment of
Suppletorily governing conditional institutions are the condition, bring the appropriate actions for the
Articles 1179 and 1192 on conditional obligations. preservation of his right.
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The 1st paragraph defines a mode obliquely. A mode is - The codicil does not imply substitution. In simple
an obligation imposed upon the heir, without substitutions, the 2nd heir takes the inheritance in default of
suspending the effectivity of the institution [which a the first heir by reason of incapacity, predecease or
renunciation. In this case, the provisions of the codicil do
condition does].
not provide that should Jorge default due to predecease,
A mode must be clearly imposed as an obligation incapacity or renunciation, the testatrix’s near descendants
in order to be considered as one. Mere preferences would substitute him. What the codicil provides is that
or wishes expressed by the testator are not modes. should Jorge or his heirs not fulfill the conditions imposed,
A mode functions similarly to a resolutory condition. the property shall be seized and turned over to Aleja’s near
In fact, modes could very well have been absorbed descendants.
by the concept of resolutory conditions. - In this case, Aleja did not make Jorge’s inheritance and the
effectivity of his institution as a devisee dependent upon on
Caucion Muciana – should be posted by the instituted the performace of the said obligation.
heir [3rd instance of caucion muciana] - It is clear, though, that should the obligation be not
complied with, the property shall be turned over to the
Aleja’s near descendants.
CASE - The manner of institution of Jorge is evidently modal in
Rabadilla v. CA nature because it imposes a charge upon the instituted heir
without, however, affecting the efficacy of such institution.
- In the codicil of Aleja Belleza, appended to her last will and - Also, since testamentary dispositions are generally acts of
testament, Dr. Jorge Rabanilla was instituted as a devisee
liberality, an obligation imposed upon the heir should not be
of parcel of land.
considered a condition unless it clearly appears from the
- The said codicil contained the following provisions:
Will itself that such was the intention of the testator. In case
o That should Jorge die ahead of the testator, the property of doubt, the institution should be considered as modal
shall be inherited by the children and spouse; and not condition.
o That if ownership of the property is transmitted to Jorge, - The SC affirmed the decision of the CA.
he shall have the obligation until he dies to give to Maria - Articles 882 and 883 of the NCC.
Belleza 75 piculs of export sugar and 25 piculs of
domestic sugar until the said Maria dies; - The institution of an heir in the manner prescribed in Article
o That in case of Jorge’s death, his hears shall be imposed 882 is what is known in the law of succession as an
the same obligation; institucion sub modo or modal institution.
o That if the heir shall later sell, lease, mortgage the said - In a modal institution, the testator states:
lot, the buyer, lessee, mortgagee shall have also the o the object of the institution;
obligation to deliver yearly 100 piculs of sugar to Maria; o the purpose or application of the property left by the
and testator; or
o That should the buyer, lessee or the mortgagee fails to o the charge imposed by the testator upon the heir.
respect Aleja’s command, Maria shall immediately seize
the lot and turn it over to Aleja’s near descendants and
- A “mode” imposes an obligation upon the heir or legatee
the latter shall have the same obligation of delivering 100 but it does not affect the efficacy of his rights to the
piculs of sugar to Maria. succession.
- For alleged violations of the codicil, Maria filed a complaint - In a conditional testamentary disposition, the condition
against Jorge’s heirs and asked for the property to be must happen or be fulfilled in order for the heir to be entitled
reconveyed to the near descendants of Aleja on that to succeed the testator. The condition suspends but does
ground that: not obligate; and the mode obligates but does not suspend.
o the lot was mortgaged to PNB and Republic Planters To some extent, it is similar to a resolutory condition.
Bank, not a near descendant of Aleja; - Since testamentary dispositions are generally acts of
o the heirs failed to deliver the sugar; and liberality, an obligation imposed upon the heir should not be
o the banks failed to comply with the obligation to deliver considered a condition unless it clearly appears from the
sugar to Maria. Will itself that such was the intention of the testator. In case
- The RTC dismissed the case. of doubt, the institution should be considered as modal
- On appeal, CA set aside the decision of RTC and ordered and not condition.
that the heirs of Jorge reconvey title over the lot with its - A will cannot be subject of a compromise agreement which
fruits and interests. would thereby defeat the very purpose of making a will.
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Miciano v. Brimo
ART. 883 par1. When without the fault of the heir,
an institution referred to in the preceding - The subject of this case is the partition of the estate of the
article cannot take effect in the exact manner late Joseph Brimo.
stated by the testator, it shall be complied - Miciano, the appointed judicial administrator, filed a partition
scheme.
with in a manner most analogous to and in
- Andre Brimo, one of Joseph’s borthers, opposed stating that
conformity with his wishes. the partition was not in accordance with Turkish laws,
The intention of the testator should always be the Jospeh being a Turkish citizen.
guiding norm in determining the sufficiency of the - Andre contends that this was void because the Civil Code
analogous performance. states that legal and testamentary successions shall be
governed by the national law of the person whose
succession is in question.
- Andre was excluded from as a legatee because of a clause
SECTION 5 – LEGITIME in the will where Joseph wished that his property be
distributed in accordance with Philippine laws, and any
legatee who fails to comply with this would be prevented
System of Legitimes – our successional system, closely from receiving his legacy.
patterned after that of the Spanish Code, reserves a - Since the institution of legatees was conditioned upon
portion of the net estate of the decedent in favor of Joseph’s wish, it is claimed that Andre is excluded by
certain heirs, or groups of heirs or combination of heirs. questioning the validity of applying Philippine laws in the
The portion that is so reserved is called the LEGITIME. partition of the estate (which was against his brother’s wish).
The portion that is left available for testamentary
WON Andre Brimo can be validly excluded as a legatee.
disposition after the legitimes have been covered is the
- NO. The condition imposed by the will of the testator is
free or disposable portion.
contrary to law because it ignores the testator’s national
The heirs for whom the law reserves a portion are
law, when according to the Civil Code, such national law of
called compulsory heirs. the testator is to govern his testamentary dispositions.
- As such, the condition is considered unwritten and the
Nature of Legitimes – the legitimes are set aside by institution of legatees in the will is unconditional and
mandate of law. Thus, the testator is required to set consequently valid and effective even as to Andre.
aside or reserve them. Otherwise stated, the testator is - The remaining clauses of the will are valid despite the nullity
prohibited from disposing by gratuitous title, either inter of the clause stating that the testator’s testamentary
vivos or mortis causa, of these legitimes. Dispositions dispositions be governed by Philippine laws.
by onerous title are not prohibited because in theory, - Art. 792, (Old) Civil Code: Impossible conditions and those
nothing is lost from the estate in an onerous disposition, contrary to law or good morals shall be considered as not
since there is merely an exchange of values. imposed and shall not prejudice the heir or legatee in any
manner whatsoever, even should the testator otherwise
Because the testator is compelled to set aside the provide.
legitimes, the heirs in whose favor the legitimes are set
aside are called compulsory heirs. The compulsion is
not on the part of the heirs, who are free to accept or ART. 886. Legitime is that part of the testator's
reject the inheritance, but on the part of the testator. property which he cannot dispose of because
the law has reserved it for certain heirs who
Major changes in the law of legitimes are, therefore, called compulsory heirs.
1. Abolition of the major or betterment in the
Spanish Code
2. The surviving spouse’s share is upgraded from This article gives the statutory definition of legitime.
a usufructuary interest to full ownership, albeit a
very variable share.
3. The grant of legitimary rights to children
classified under the New Civil Code as illegitimate
other than natural or spurious, and further change
under the Family Code abolishing the distinction
between natural and spurious children and giving
all illegitimate children the same legitimary shares.
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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 LEGAL SEPARATION between the
Children and legitimate child or descendant of the testator and the surviving
Surviving children deceased survives, the widow spouse
Spouse Share equal to or widower shall be entitled to If there is a final decree of legal
that of 1 child one-fourth of the hereditary separation
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LCICSS Legitimate ½ of estate to Art. 895. The legitime of each of In case total of the shares of all
children, legitimate the acknowledged natural illegitimate children exceed the
illegitimate children children and each of the natural amount of the estate, their
children and Each children by legal fiction shall shares shall be reduced equally.
surviving illegitimate consist of one-half of the The shares of the legitimate
spouse child will get ½ legitime of each of the legitimate children and the surviving
of the share of children or descendants. spouse cannot be reduced.
The legitime of an illegitimate
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LPIC Legitimate ½ of estate to Art. 896. Illegitimate children For the illegitimate children or
parents and legitimate who may survive with legitimate descendants, the sharing shall
illegitimate parents parents or ascendants of the depend on whether death
children ¼ of estate to deceased shall be entitled to occurred before or during the
illegitimate one-fourth of the hereditary effectivity of the Family Code.
children estate to be taken from the
portion at the free disposal of
the testator.
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Whether or Not CA erred in ruling that the petitioners are still Lapuz v. Eufemio
liable to pay to the Nacarios’ parents
- SC held that this ruling is erroneous. Note – under the Lapuz ruling, it does not matter who dies,
- The Court recognized that payment is one of the whether it be the offending or innocent spouse.
recognized modes in extinguishing obligations.
- According to Art 1240 of the CC, to effect extinguishment, De Aparicio v. Paraguya
payment must be made either to the person to whom the
obligation is made, to his successors-in-interest, or to - Trinidad Motilde had a love affair with a priest, Fr. Felipe
anyone authorized. Lumain and in the process she conceived.
- It is clear under Article 887 that a surviving spouse and the - When Trinidad was almost four months and in order to
legitimate children are the compulsory heirs of a decedent. conceal the affair, Trinidad decided to marry Anastacio
- As such, the petitioners correctly paid Alicia and her son, MAmburao.
who are the successors-in-interest of Nacario. - When Fr. Lumain died, he left a last will and testament
- On the other hand, the parents of the deceased succeed wherein he acknowledged Consolacion as his daughter and
only when the latter dies without any legitimate instituted her as the sole and universal heir of all his
descendants. Since Nacario and Alicia begot a son, the property rights and interests.
legitimate ascendants are excluded from succession. - Soon after reaching the age of majority, Consolacion filed
- This is so even if Alicia had been estranged from an action for the recovery of certain parcels of land and for
Bienvenido. Mere estrangement is not a legal ground for damages against Hipolito Paraguya.
the disqualification of a surviving spouse as an heir of the - Motilde claims that she has inherited these lands from her
deceased spouse. biological father.
- Legitimate ascendants succeed only in default of legitimate - During the trial, it was found that the subject of the action
descendants whereas a spouse is a concurring heir and were the three parcels of land originally owned by the
succeeds together with all classes of heirs. Parents of Fr. Lumain, the spouses Roman Lumain and
- Mere estrangement is not a legal ground for the and Filomena Cesare.
disqualification of a surviving spouse as an heir of the - Paraguya claims ownership over the second parcel of land
deceased spouse. by virtue of a Pacto de retro sale executed by Roman
Lumain and the former.
- Paraguya also claimed another portion of the lands in
question, described as portion G, which he said he bought
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.
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1 LEGITIMATE CHILD / SURVIVING SPOUSE – the The problem here will arise should either or both
sharing is ½ for the legitimate child and ¼ for the partners in the defective marriage remarry later.
surviving spouse.
Balane says that prescinding from the practical
If there has been LEGAL SEPARATION between the
problem of having 2 husbands [or 2 wives] claiming
testator and the surviving spouse the right to a legitime, the very principle underlying
If there is a final decree of legal separation the rule is questionable – why should consorts of a
1. surviving spouse is the innocent party – he/she terminated marriage, or an annulled one, or one
gets her legitime [Art63 par4 FC] declared void ab initio continue to be heirs of each
2. surviving spouse is the offending spouse – other? The marriage – which forms the basis of the
he/she is disqualified from inheriting [Art63 right of succession no longer exists.
par4 FC]
If after the final decree of legal separation there LEGITIMATE CHILDREN / SURVIVING SPOUSE –
was a reconciliation between the parties, the The sharing is ½ for the children collectively and for the
reciprocal right to succeed is restored because spouse, equivalent to that of each of the legitimate
reconciliation sets aside the decree [Art66 par2 FC] children or descendants.
Determination of surviving spouse’s share
DEATH PENDENTE LITE – if either spouse dies during 1. As long as at least 1 of several children
the pendency of the proceedings for legal separation, inherits in his own right, the determination of
the proceedings are TERMINATED and the surviving the share of the surviving spouse presents no
spouse inherits from the deceased spouse, no matter problem. It will always be equivalent of one
which spouse died. child’s share.
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2. But supposing ALL the children predecease or • The legitime of the spurious child will only
are disinherited or are unworthy to succeed? be 4/5 that of a natural child, according to
Since all the grandchildren would then inherit the ratio established in Art895 par2.
BY REPRESENTATION and therefore in • This ratio of 5:4 among natural and
different amounts, the practical solution will still spurious children should be observed in
be to give the spouse the share that each child all cases under the Civil Code where they
would have gotten if qualified. concur.
3. Supposing ALL the Children RENOUNCE, the
grandchildren would inherit PER CAPITA or in
their own right and therefore equally. Should
the spouse’s share still be computed on the
basis of the children’s share had they
accepted? If so, then when will the word “or ART. 895. The legitime of each of the
descendants” in the second paragraph of this
acknowledged natural children and each of
article ever be operative?
the natural children by legal fiction shall
consist of one-half of the legitime of each of
ART. 893. If the testator leaves no legitimate the legitimate children or descendants.
descendants, but leaves legitimate The legitime of an illegitimate child who is
ascendants, the surviving spouse shall have neither an acknowledged natural, nor a
a right to one-fourth of the hereditary estate. natural child by legal fiction, shall be equal in
This fourth shall be taken from the free every case to four-fifths of the legitime of an
portion of the estate. acknowledged natural child.
The legitime of the illegitimate children
LEGITIMATE ASCENDANTS / SURVIVING SPOUSE shall be taken from the portion of the estate at
- the sharing is ½ for the ascendants collectively and ¼ the free disposal of the testator, provided that
for the surviving spouse. in no case shall the total legitime of such
For the parents or ascendants, the sharing will be in illegitimate children exceed that free portion,
accordance with Articles 889-890. [Legitimate and that the legitime of the surviving spouse
parents/ascendants as secondary compulsory heirs – must first be fully satisfied.
the legitimate ascending line succeeds only in default of
the legitimate descending line.]
This article has been pro tanto amended by Articles
163, 165 and 176 of the Family Code.
ART. 894. If the testator leaves illegitimate ONE LEGITIMATE CHILD / ILLEGITIMATE
CHILDREN / SURVIVING SPOUSE – the sharing is ½
children, the surviving spouse shall be
for the illegitimate child, ¼ for the surviving spouse, and
entitled to one-third of the hereditary estate of ¼ for each illegitimate child. These sharings are based
the deceased and the illegitimate children to on Art.892 of NCC and Art176 of FC.
another third. The remaining third shall be at
the free disposal of the testator. LEGITIMATE CHILDREN / ILLEGITIMATE CHILDREN
/ SURVIVING SPOUSE - the sharing is ½ for the
legitimate children collectively, a share equal to that of
ILEGITIMATE CHILDREN / SURVIVING SPOUSE –
one legitimate child for the surviving spouse, and ½ the
the sharing is 1/3 for the illegitimate children or
share of one legitimate child for each illegitimate child.
descendants collectively and 1/3 for the surviving
spouse.
SHARING PRIOR TO THE FAMILY CODE
If death occurred before the effectivity of the Family
Sharing among illegitimate children
Code, this article will govern – consequently,
1. If the decedent died during the effectivity of the
should the natural and spurious children concur in
FAMILY CODE – the sharing will be equal,
the succession, each spurious child will get 4/5 the
inasmuch as the Family Code has abolished
share of one natural child, and each natural child
the old distinction between natural and
gets ½ the share of one legitimate child. Example -
illegitimate children other than natural or
spurious [Arts 163, 165 and 178 of FC] • 5 legitimate children and total estate is
1M. ½ of estate [500,000] divided by 5 so
2. If the decedent died BEFORE the effectivity of 1 Legit child – 100,000
the Family Code, the old distinctions must be • Natural child – 50,000
observed.
• Spurious child – 40,000
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c) The parties did not cohabit for more surviving spouse, nor illegitimate children, is
than 5 years, and one-half of the hereditary estate of such
d) The spouse who died was the party in illegitimate child. If only legitimate or
articulo mortis at the time of the marriage. illegitimate children are left, the parents are
not entitled to any legitime whatsoever. If only
NOTE – the last requisite is not explicit in the article but the widow or widower survives with parents
can be derived from the sense and intent of the of the illegitimate child, the legitime of the
provision. The law does not regard such marriages with
eager approval.
parents is one-fourth of the hereditary estate
of the child, and that of the surviving spouse
also one-fourth of the estate.
ART. 901. When the testator dies leaving ILLEGITIMATE PARENTS / SURVIVING SPOUSE –
illegitimate children and no other compulsory the sharing is ¼ for the parents collectively and ¼ for
heirs, such illegitimate children shall have a the spouse.
right to one-half of the hereditary estate of the
deceased. Illegitimate parents EXCLUDED by all kinds of children
– as secondary compulsory heirs, the illegitimate
The other half shall be at the free disposal parents are inferior to legitimate parents. Whereas
of the testator. legitimate parents are excluded only by legitimate
children, illegitimate parents are excluded by all kinds of
children, legitimate or illegitimate.
ILLEGITIMATE CHILDREN ALONE – they get ½ of the
estate collectively. The sharing among the illegitimate
children or descendants will depend on whether death
occurred before or during the effectivity of the Family
Code.
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3. Reversion Legal
4. Reversion Adoptiva
RESERVA TRONCAL
Prepositus
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3. RESERVISTA
[RESERVOR]
• 2 BASIC RULES o He is an ascendant of the Prepositus, of
I. No whatever degree. The Reservista must be an
inquiry is to be made beyond the Origin/ ascendant other than the Origin/ Mediate
Mediate Source. It does not matter who the Source [if the latter is also an ascendant].
owner of the property was before it was o The law is clear - it refers to the Origin/ Mediate
acquired by the Origin. Source as another ascendant. If these two
II. All the parties are the same person, there would be no
relationships among the parties must be reserva troncal.
legitimate. The provisions of Art891 only apply
to legitimate relatives.
o Should the Origin/Mediate Source and the
• 4 PARTIES TO THE RESERVA TRONCAL Reservista belong to Different Lines?
- Example: A receives by donation a parcel
1. ORIGIN OR THE of land from his paternal grandfather X.
MEDIATE SOURCE Upon A’s death, the parcel passes by
intestacy to his father Y [X’s son]. The
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property never left the line, is Y obliged to conceived and born after the Prepositus’
reserve? death.
- One View – NO, because another
ascendant is one belonging to a line other o Preference Among the Reservatarios
than that of the reservista. - Upon death of the ascendant reservista,
- Another View – YES, because [1] the law the reservable property should pass, not to
makes no distinction, and [2] the purpose of all the reservatorios as a class, but only to
the reserve is not only curative but also those NEAREST in degree to the
preventive, i.e. to prevent the property from descendant [prepositus], excluding those
leaving the line. reservatarios of more remote degree.
[Padura v. Baldovino]
4. RESERVATARIOS - In other words, the reserve troncal merely
[RESERVEES] determines the group of relatives
o The reserva is in favor of a class, collectively [reservatarios] to whom the property should
referred to as the Reservatarios [reservees]. be returned; but within that group, the
o REQUIREMENTS TO BE A RESERVATARIO: individual right to the property should be
decided by the applicable rules of ordinary
1) He must be within the 3rd
intestate succession, since Art891 does not
degree of consanguinity from the
specify otherwise.
Prepositus.
- Thus, according to the Padura ruling, which
2) He must belong to the line subjects the choice of reservatarios to the
from which the property came. This is rules of intestate succession, those
determined by the Origin/Mediate reservatarios nearer in degree of
Source. relationship to the Prepositus will exclude
- If an ascendant, the Mediate Source is those more remotely related.
either of the paternal or maternal line.
o Representation Among the Reservatarios
- If a half-brother or half-sister, the same
is true. - As in intestate succession, the rule of
- If however, it is a brother or sister of preference of degree among reservatarios
the full blood, it would not be possible is qualified by the rule of representation.
to distinguish the lines. - The right of representation cannot be
- To those who hold the opinion that a alleged when the one claiming the same as
reserva would not exist in such case of a reservatario of the reservable property is
full blood siblings, Manresa’s comment not among the relatives within the 3rd
should be the norm: “that the question degree belonging to the line from which
of line would be indifferent.” such property came, inasmuch as the right
granted by the Civil Code in Art811 is in the
o Question – must the Reservatario also be highest degree personal and for the
related to the Mediate Source? exclusive benefit of designated persons
- Manresa says NO, the article speaks who are the relatives withint the 3rd degree
of the person from whm the reservable
solely of 2 lines, the paternal and the
property came. Therefore, relatives of the
maternal of the descendant, without regard
4th degree and the succeeding degrees can
to subdivisions.
never be considered as reservatarios since
- Sanchez Roman says YES, otherwise
the law does not recognize them as such.
results would arise completely contrary to
the purpose of this reserva, which is to - Nevertheless, there is a right of
prevent the property from passing to representation on the part of the
persons not of the line of origin. reservatarios who are within the 3rd degree
mentioned by law, as in the case of
o Reserva in favor of reservatarios as a CLASS - nephews of the deceased person from
whom the reservable property came. These
to be qualified as a reservatario, is it necessary
that one must already be LIVING when the reservatarios have the right to represent
their ascendants [fathers and mothers] who
prepositus dies?
are the brothers of the said deceased
- NO, because the reserva is established in person and relatives within the 3rd degree in
favor of a GROUP or CLASS, the relatives accordance with Art811. [Florentino v.
within the 3rd degree, and not in favor of Florentino]
specific individuals.
- Actually, there will only be 1 instance of
- As long, therefore, as the reservatario is representation among the reservatarios,
alive at the time of the reservarista’s death, which is in case of the Prepositus being
he qualifies as such, even if he was survived by brothers/sisters and children of
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There are no specific - This is an appeal by Beatriz Gonzales from the decision of
implementing articles on the reserva troncal. the CFI of Manila for dismissing her complaint for partition,
Under the Old Code, the accounting, reconveyance, damages, and holding as not
provisions viudal were extended to the troncal, thus subject to reserva troncal, the properties which her mother
the rights of the reservatarios and the corresponding inherited in 1943 from Filomena.
obligations of the reservista were: - Benito Legarda y De la paz, the son of Benito Legarda y
Tuason died in 1933 and was survived by widow Filomena
a. To inventory the reserved properties
and their seven children.
b. To annotate the reservable character [if
- In 1939, real properties left by Benito Legarda y Tuason
registered immovables] in the Registry of were partitioned in three equal portions by his daughters
Property within 90 days from acceptance by and the heirs of the deceased son who were represented
the reservista. by Benito Legarda.
c. To appraise the immovables - Mrs. Legarda then executed in 1947 an affidavit
d. To secure by means of mortgage: [i] the adjudicating extrajudicially to herself the properties which
indemnity for any deterioration of or damage she inherited from her deceased daughter, Filomena
to the property occasioned by the reservista’s Legarda.
fault or negligence, and [ii] the payment of the - As a result of the affidavit of adjudication, Filomena Roces
value of such reserved movables as may succeeded her deceased daughter Filomena Legarda as
have been alienated by the reservista co-owner of the properties held proindiviso by her other six
onerously or gratuitously. children.
- Then in 1953, Mrs. Legarda executed two handwritten
The abolition of the reserva identical documents wherein she disposed of the properties
viudal has caused some uncertainty whether these which she inherited from her daughter, in favor of the
requirements still apply. children of her sons.
- Then from the period of 1958 to 1959, Mrs. Legarda and
her children partitioned the properties consisting of the one-
It was held in Sumaya v. IAC third share in the estate of Benito Legarda y Tuason which
that the requirement of annotation remains, despite the children inherited in representation of their father,
the abolition of reserva viudal, as based on Sec51 of Benito Legarda y De la Paz.
PD1529 providing for conveyance and other - On 1967, Mrs. Legarda died and on 1968 her holographic
dealings by registered owners. will was admitted to probate.
- During such proceeding, Beatriz Gonzales filed a motion to
exclude from the inventory of her mother’s estate the
Sumaya is however, silent on 2 properties which she inherited from her deceased daughter,
points: Filomena on the ground that such properties are reservable
1. Within what period properties which should be inherited by Filomena Legarda’s
must the annotation be made, and three sisters and three brothers and not by the children of
2. Whether the other Benito, Alejandro and Jose. This was opposed by the
requirements of the old viudal also remain. administrator.
- She then filed an ordinary civil action for the purpose of
• Extinguishment of the Reserva Troncal securing a declaration that the said properties are
The reserve troncal is reservable properties which Mrs. Legarda could not
extinguished by: bequeath in her will. This was dismissed.
1. Death of the - Hence this appeal.
Reservista
WON, the properties in question are subject to reserve troncal
2. Death of ALL the
under Article 891 of the Civil Code.
Reservatarios
- Yes, the properties in the instant case were reservable
3. Renunciation by ALL
properties in the hands of Mrs. Legarda. Undoubtedly she
the Reservatarios, provided that no other was a reservoir.
reservatario is born subsequently - The reservation became a certainty when at the time of her
4. Total fortuitous loss of death the reserves or relatives within the third degree of the
the reserved property prepositus Filomena Legarda were living or they survived
5. Confusion or merger of Mrs. Legarda.
rights, as when the reservatarios acquire the
reservista’s right by a contract inter vivos WON, Mrs. Legarda as reservor can convey the reservable
6. Prescription or adverse properties by will or mortis causa to the reserves within the 3 rd
possession degree to the exclusion of the reserves in the 2nd degree, her
daughters and sons.
- No, she cannot convey these as they never really formed
CASES part of her estate.
- The reservor cannot make a disposition morits causa of the
Gonzales v. CFI reservable properties as long as the reserves survived the
reservoir.
- The nearest relatives should be the one who will inherit the
property and Mrs. Legarda could not choose to whom the
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reservable property should be given and deprive the other spouse, brothers, sisters, nephews or nieces, what should
reservees of their share therein. apply in the distribution of his estate are Articles 1003 and
- Ignoring the second degree reservees would be a glaring 1009 of the Civil Code. (see Doctrine portion)
violation of Article 891. - Both plaintiff-appellee and defendant-appellant being
- Hence, the reservable properties should go to Mrs. relatives of the decedent within the third degree in the
Legarda’s children and not to the grandchildren. collateral line, each, therefore, shall succeed to the subject
- In reserva troncal,l (1) a descendant inherited or acquired estate 'without distinction of line or preference among them
by gratuitous title property from an ascendant or from a by reason of relationship by the whole blood,' and is entitled
brother or sister; (2) the same property is inherited by to one-half (1/2) share and share alike of the estate.
another ascendant or is acquired by him by operation of law - As regards Concordia’a ½ share--inasmuch as Concordia
from the said descendant, and (3) the said descendant had agreed to deliver the estate of the deceased to the
should reserve the said property for the benefit of relative foundation in honor of his mother, Salustia. she is bound by
who are within the third degree from the deceased that agreement. It is true that by that agreement, she did
descendant and who belong to the line from which the said not waive her inheritance in favor of Celedonia, but she did
property came. Three transmissions are involved. agree to place all of Esteban's estate in the "Salustia
- Reserva contemplates legitimate relationship Solivio Vda. de Javellana Foundation" which Esteban, Jr.,
during his lifetime, planned to set up to honor his mother.
- The persons involved in reserva troncal are:
Solivio v. CA "1. The person obliged to reserve is the reservor
(reservista) — the ascendant who inherits by operation of
- As Esteban’s parents died while he was still young, Salustia law property from his descendants.
and her sister, Celedonia brought up Esteban, Jr. Salustia, "2. The persons for whom the property is reserved are
Esteban’s mother, brought to her marriage paraphernal the reservees (reservatorios) — relatives within the third
properties, but no conjugal property was acquired during degree counted from the descendant (propositus), and
her short-lived marriage to Esteban, Sr. belonging to the line from which the property came.
- Salustia died, leaving all her properties to her only child, "3. The propositus — the descendant who received by
Esteban, Jr., gratuitous title and died without issue, making his other
- Esteban died of a heart attack. His only surviving relatives ascendant inherit by operation of law.
are: (1) his maternal aunt, petitioner Celedonia Solivio, the - "ART. 1003. If there are no descendants, ascendants,
spinster half-sister of his mother, Salustia Solivio; and (2) illegitimate children, or a surviving spouse, the collateral
the private respondent, Concordia Javellana-Villanueva, relatives shall succeed to the entire estate of the deceased
sister of his deceased father, Esteban Javellana, Sr. in accordance with the following articles.
- Celedonia told Concordia about Esteban's desire to place - "ART. 1009. Should there be neither brothers nor
his estate in a foundation to be named after his mother, sisters, nor children of brothers or sisters, the other
from whom his properties came, for the purpose of helping collateral relatives shall succeed to the estate.
indigent students in their schooling. Concordia agreed to - "The latter shall succeed without distinction of lines or
carry out the plan of the deceased. preference among them by reason of relationship by the
- The probate court declared Celdonia as sole heir of the whole blood."
estate of Esteban. Thereafter, she sold properties of the
estate to pay the taxes and other obligations of the
deceased and proceeded to set up the "SALUSTIA
SOLIVIO VDA. DE JAVELLANA FOUNDATION".
- Four months later, Concordia filed a motion for
reconsideration of the court's order declaring Celedonia as Nieva v. Alcala
"sole heir" of Esteban, Jr., because she too was an heir of
the deceased. - Juliana Nieva married Francisco Deocampo and with whom
she begot a son named Alfeo Deocampo. Juliana died
Whether the decedent's properties were subject to reserva intestate and her son Alfeo inherited from her several
troncal in favor of Celedonia, his relative within the third parcels of land. However, Alfeo died intestate and without
degree on his mother's side from whom he had inherited issue, so the aforementioned parcels of land passed to his
them; father Francisco. Francisco subsequently married Manuela
- NO. Clearly, the property of the deceased, Esteban Alcala, with whom he had a son, Jose Deocampo. When
Javellana, Jr., is not reservable property, for Esteban, Jr. Francisco died, his widow and his son took possession of
was not an ascendant, but the descendant of his mother, the said lands.
Salustia Solivio, from whom he inherited the properties in - Segunda Maria Nieva sought to recover the parcels of land
question. in question, as she is the acknowledged natural daughter of
- Therefore, he did not hold his inheritance subject to a Juliana. According to her birth records, Juliana gave birth
reservation in favor of his aunt, Celedonia Solivio, who is to her and lived with her before Juliana’s marriage to
his relative within the third degree on his mother's side. The Francisco. Segunda was treated and publicly exhibited as
reserva troncal applies to properties inherited by an Juliana’s legitimate daughter.
ascendant from a descendant who inherited it from another
ascendant or a brother or sister. It does not apply to Whether or not the law on reserva troncal applies to
property inherited by a descendant from his ascendant, the illegitimate relatives.
reverse of the situation covered by Article 891. No. While there are no previous cases on the subject, the
- Since the deceased, Esteban Javellana, Jr., died without Court thought it proper to adopt the writings of Manresa and
descendants, ascendants, illegitimate children, surviving Scaevola on the matter.
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received by Severina from her son was reservable property - Lot 3368 originally belonged to Saturnino Yaeso.
and thus, they are each entitled to 1/7 of the fruits of the - Saturnino had four children with his first wife Teresa
reservable property. Ruales- Agaton, Fernando, Paulina and Cipriana.
- Defendants demurred claiming that the object of the law is - Saturnino also had a second wife, Andrea Gutang,
to avoid the transfer of the reservable property to those with whom he had an only son named Francisco.
extraneous to the family of the owner. They claim that since - When Saturnino died, Francisco inherited the
the property was transferred to Mercedes (who was part of western portion of Lot 3368. hence, it was accordingly
the family), the object of the law has not been violated and transferred in the name of Francisco.
thus the property has lost its reservable character. - After reaching the age of 20, still being single,
Francisco died with no other heir except his mother Andrea.
WON the property was reservable. - Andrea, then executed an extra-judicial settlement
- YES. Even if Severina left in her will said property, together and sale, where he sold the land to appellants. Thus, the
with her own, to her only daughter and forced heiress, vendees demanded from Paulina Yaeso the surrender of
Mercedes, nevertheless this property had not lost its the OCT covering the said land, but the latter refused.
reservable nature inasmuch as it originated from the - Subsequently, Cipriana and Paulina Yaeso, the
common ancestor of the litigants, Apolonio Isabelo; was surviving half-sisters of Francisco, declared the property in
inherited by his son Apolonio III; was transmitted by same their name and executed a deed of sale in favor of the
(by operation of law) to his legitimate mother and spouses Fidel Esparcia and Paulina Sienes. The spouses
ascendant, Severina. procured a TCT over the land in their name.
- Severina was duty bound, according to article 811 of the - Andrea Gutang died in December 1951 while being
Civil Code, to reserve the property thus acquired for the survived by Cipriano Yaeso.
benefit of the relatives, within the third degree, of the line
from which such property came. Whether or not there was Reserva Troncal
- As to the children of the brothers and sisters of - SC held that there is Reserva Tronacal.
Encarnacion, SC held that there is right of representation - It is clear from the facts that Francisco Yaeso
on the part of reservatarios who are within the third degree inherited by operation of law from his father Saturnino.
mentioned by law, as in the case of nephews of the Upon Francisco’s death, unmarried and without
deceased person from whom the reservable property came. descendants, Andrea Gutang as the sole heir inherited the
These reservatarios have the right to represent their land from the former.
ascendants (fathers and mothers) who are the brothers of - Hence she is under obligation to reserve it for the
the said deceased person and relatives within the third benefit of relatives within the third degree belonging to the
degree. line from which said property came.
- If this property was in fact clothed with the character and
condition of reservable property when Severina inherited Whether or Not the Spouses Esparcia are entitle to the land
same from her son Apolonio III, she did not thereby acquire sold to them by Cipriana yaeso
the dominion or right of ownership but only the right of - As between the transfer made by Andrea Gutang and
usufruct or of fiduciary with the necessary obligation to the transfer made by Cipriana, the latter is the only one
preserve and to deliver or return it as such reservable deemed valid and binding.
property to her deceased son's relatives within the third - First, although Andrea Gutang inherited the land, she
degree, among whom is her daughter, Mercedes. only inherits it as a reservista. She therefore has the
- According to the provisions of law, ascendants do not inherit obligation to preserve the property for the reservatorios or
the reservable property, but its enjoyment, use or trust, reservees. In this case, these are the half-sisters of
merely for the reason that said law imposes the obligation to Francisco.
reserve and preserve same for certain designated persons - Second, the transferee in the sale made by Andrea
who, on the death of the said ascendants reservists acquire only acquires the latter’s revocable and conditional
the ownership of said property owenership of the property. Hence, if Andrea dies and she
is survived by the reservees, title pass to the latter by
- Said property reverts to said line as long as the operation of law.
aforementioned persons who, from the death of the - Cipriana, having survived Gutang, now obtains
ascendant-reservists, acquire in fact the right of exclusive ownership over the land and the sale made by
reservatarios (person for whom property is reserved), and Gutang is of no legal effect.
are relatives, within the third degree, of the descendant from - Third, Cipriana as the reservee, had the right to
whom the reservable property came. alienate the property even before Gutang’s death. In which
- Reservable property neither comes, nor falls under, the case, the sale becomes absolute if the reservee survives
absolute dominion of the ascendant who inherits and the reservista. The sale therefore made by Cipriana and
receives same from his descendant, therefore it does not Pualina is deemed effective.
form part of his own property nor become the legitimate of - However, in so much as the Esparcia spouses did
his forced heirs. It becomes his own property only in case not appeal the decision reverting the property in the estate
that all the relatives of his descendant shall have died of Cipriano, they can not recover the same.
(reservista) in which case said reservable property losses - The reserved property is subject to two suspensive
such character. conditions: a) death of the ascendant obliged to reserve, b)
the survival, at the time of death, or relatives within the third
Edroso v. Sablan degree belong to the line from which the property came.
- The reservatorios have a right of expectancy over the
Sienes v. Esparcia property. The expectancy ripens into ownership if the
reservatorios survive the reservists.
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- The right is alienable but subject to the same suspensive - That Balbino died intestate surivived by his legit children by
condition. The right is registrable. his wife and legit grandchildren.
- In the partition of his estate, 3 parcels of land were
adjudicated as the inheritance of the late Toribia Tioco, but
Cano v. Director as she had predeceased her father, the 3 parcels of land
devolved upon her 2 legit children one of which is Faustino
- In a Land Registration case, a final decree and title Dizon.
over a parcel of land was adjudicated in favor of Maria - Faustino then died intestate leaving his ½ share in the 7
Cano, subject to Reserva Troncal in favor of Eustaqia parcels of land to his father Eustacio subject to reserve
Guerrero. troncal.
- It appears from the stipulation of facts in the - Trinidad Dizon-Tongko died intestate and her rights and
registration case that the subject lot was acquired by Maria interests in the parcels of land were inherited by her only
Cano from her deceased daughter, who in turn inherited the child, Dalisay Camacho.
same from her father Evaristo Guerrero. Hence, falling - Eustacio then died survived only by his only legit
squarely under Art 891. descendant , the child mentioned above.
- It was found that Eustaquia Guerrero was of the - Dalisay now owns ½ of all the 7 parcles of land. She now
nearest kin of Evaristo, hence the former excludes all other also claims the other half the said parcels of land by virtue
relatives. of the reserve troncal upon the death of Faustino Dizon.
- Thereafter the counsel of Eustaqia fileda motion with - The lower court declared the plaintiffs Francisco Tioco,
the Cadastral Court alleging the death of maria Cano, the Manuel Tioco and Nicolas Tioco as well as Dalisay
reservista,a nd hat the Oct therefore be cancelled and a Camacho, entitled as reservatorios, to one-half of the seven
new one issued in favor of Eustaqia Guerrero. parcels of land in dispute.
- Despite opposition, the lower court granted the - Hence this appeal.
petition for the new issuance of a new certificate.
- The oppositors, heirs of Maria Cano, insisted that the WON, all relatives of the praepositus within the 3rd degree in
ownership of the reservatorio requires a separate judicial the appropriate line succeed without distinction to the
administration proceeding (intestestate proceeding), where reservable property upon the death of the reservista
there will be first a declaration that the elements of reserve - Yes, they succeed without distinction. And the rules on
troncal are existing. intestacy shall govern as held in a previous decision by this
Court.
Whether or not a separate judicial proceeding is required - Nephews and nieces of whole blood were each entitled to a
- There is no need for a separate intestate proceeding. share double that of each of the nephews and nieces of half
- First, the stipulation of facts in the registration blood in accordance with the Civil Code.
proceedings already manifests the existence of reserve - Reserva merely determines the group of relatives to whom
troncal infavor of Esuataqia. The proceeding being final, the the property should be returned; but within that group, the
oppositors are barred from questioning the existence individual right to the property should be decided by the
thereof. applicable rules of ordinary intestate succession since Art.
- The contention that there is a need for a separate 891 does not specify otherwise.
proceeding rests upon the assumption that the reservatorio - Reversion of the reservable property being governed by the
will succeed or inherit the reserved property from the rules on intestate succession, the plaintiffs-appelless must
reservista, which is not the case. be held without any right thereto because, as aunts and
uncles, respectively of Faustino Dizon, they are excluded
- Upon the death of the reservista, the reservatario
from the succession by his niece, the defendant-appellant,
becomes, automatically and by operation of law, the although they are related to him within the same degree as
owner of the reserved property. the latter.
- The property is no part of the estate of the reservista, - Had the property been passed directly, there is no doubt
hence its acquisition by the reservatario may be entered in that they would have been excluded by the defendants-
the property records without the necessity of estate appellees under the rules of intestate succession. There is
proceedings. no reason why a different rule would apply in this case.
- The reserved property is not part of the reservista’s estate - The Defendant-appellee Dalisay Camacho is entitled to the
and the reservatario acquires the property automatically and entirety of the reversionary property to the exclusion of the
by operation of law. plaintiffs-appellees.
- Lower court judgment is reversed and the complaint is
dismissed.
De Papa v. Camacho - In reserva troncal, the successional rights of the relatives of
the praepositus within the 3rd degree are determined by,
- Defendant Camacho and Plaintiffs are legitimate relatives, and subject to the rules of intestate succession; so as to
plaintiffs being the grandaunt and granduncles of the exclude uncles and aunts of the descendant from the
defendant. reservable property by his niece or nephew.
- They have a common ancestor the late Balbino Tioco,
father of the plaintiffs and great grandfather of defendant.
- Romana Tioco, the sister of Balbino gratuitously donated to Frias v. CFA
the legitimate sister of plaintiffs 4 parcels of land.
- And that sister died intestate in 1915, survived by her - In the first marriage of Jose Frias Chua with Patricia
husband and 2 legit children and leaving the four parcels of S. Militar, he sired three children, namely: Ignacio, Lorenzo
land as the inheritance of her said 2 children in equal pro and Manuel. When Militar died, Jose contracted a second
indiviso shares.
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marriage with Consolacion de la Torre with whom he had a is that the person who transmits it does so gratuitously,
child by the name of Juanito. Manuel died without leaving from pure generosity, without requiring from the transferee
any issue. Then Jose died intestate leaving his widow any prestation.
Consolacion and his son Juanito, Ignacio, and Lorenzo. In
the Intestate Proceeding, the court issued an
orderadjudicating, among others, the one-half (1/2) portion De Los Reyes v. Paterno
of Lot No. 399 and the sum of P8,000.00 in favor of
Consolacion, the other half in favor of Juanito, P3,000.00 in - The subject properties were the conjugal property of
favor of Lorenzo; and P1,550.00 in favor of Ignacio. Tomas G. Del Rosario and his wife, Juana Reyes. Juana
- Juanito died intestate without any issue. After his died and her daughter Concepcion was declared to be her
death, is mother Consolacion succeeded to his pro-indiviso sole heir. However, Concepcion died at the age of 9 and all
share of her son Juanito. Consolacion then died intestate her rights to the half of the property passed to her father,
leaving no direct heir either in the descending or ascending Tomas, who was then already the owner of the other half.
line except her brother and sisters. Tomas registered the properties and after a year his title
- In the "Intestate Estate of Consolacion de la Torre", thereto became absolute and complete.
the petitioners herein, Ignacio, and Dominador and - After 6 years, plaintiff in this case seeks to recover
Remedios Chua, the supposed legitimate children of the one half of the subject properties, on the basis of reserva
deceased Lorenzo filed the complaint praying that the one- troncal.
half (1/2) portion of Lot No. 399 which formerly belonged to
Juanito Frias Chua but which passed to Consolacion, be Whether or not the plaintiff may still recover the property after
declared as reservable property for the reason that the lot the lapse of one year from the finality of the registration
in question was subject to reserva troncal pursuant to proceedings on the ground of reserve troncal.
Article 981 of the New Civil - No.
- The CFI rendered a decision dismissing the - The reservable right may be lost to the holder when
complaint of petitioners. According to it, the property in he fails or neglects to oppose the registration of the land in
question was not acquired by Consolacion and Juanito which such right exists under the Torrens System.
gratuitously but for a consideration, namely, that the - Unless a reservable right is protected during the pendency
legatees were to pay the interest and cost and other fees of the action for the registration of land, or within the
resulting from Civil Case No. 5300 to Standard Oil Co. of allowable period to contest such as prescribed by law, such
New York the amount of P3,971.20 right is lost forever.
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thereby showing the reservable nature thereof was - Jose married Marcelina and had one child who died before
registered with the RD of Laguna. This is sufficient notice to Jose.
the whole world. - Mariano left a will dividing his property between Santiago
- It was clearly stated in the affidavit that the properties were and Jose, giving the latter 11 parcels of land. Upon Jose’s
inherited by Raul from his father and maternal grandmother death, he named his wife Marcelina as his only heir.
respectively. - When Jose’s will was going to be probated, Marcelina and
- In this case, the affidavit executed by Conseulo which Maria (the mother) entered into a contract where they
contained a statement that the property was inherited from divided the property left by Jose between themselves.
a descendant, Raul, which has likewise inherited by the - Maria later sold parcels 1-6, 10 and 11 to Marcelina, who
latter from another descendant, was registered with the RD. later sold them to Pablo Rocha. Pablo later returned
The failure of the RD to annotate the reservable character parcels 1-6 to Maria saying that they were erroneously
of the property in the certificate of title cannot be attributed included in the sale made by Maria to Marcelina.
to Consuelo. - Magin (the daughter of Santiago) is now claiming that she
- Moreover, there is sufficient proof that the petitioners had and her sister Consolacion had a share in the 11 parcels
actual knowledge of the reservable character of the passed on to Marcelina by Jose.
properties before they bought the same from Consuelo.
- Moreover, the court found that the the partiers were long WON the 11 parcels were reservable properties.
time acquaintances. They knew all along that the properties - YES. The 11 parcels of land were acquired by Jose by
litigated in this case were inherited by Raul from his father lucrative title from his father Mariano and that after the
and from his maternal grandmother and that Consuelo death of Jose, they passed on to Maria by operation of law.
inherited these from his son Raul. - Magin and Consolacion were the nearest relatives within
the 3rd degree of the line from which the property came.
Whether the cause of action of private respondents has - Maria was ordered to acknowledge the right of Magin and
prescribed. Consolacion to the reservation of the parcels of land, which
- No. The cause of action of the reservees did not commence was to be recorded in the RD.
upon the death of the propositus Raul Balantakbo but upon - As to Marcelina and Pablo, they could not have acquired a
the death of the reservor Consuelo. The reserva is better title than that held by Maria Corral and if the latter's
extinguished upon the death of the reservor, as it then title was limited by the reservation and the obligation to
becomes a right of full ownership on the part of the note it in the registry of deeds.
reservatarios, who can bring a reivindicatory suit therefor. - Pablo was also ordered to register parcels 10 and 11 as
- When a conveyance has been properly recorded, such reservable property in the RD since he knew that the
record is constructive notice of its contents and all interests, property was reservable. He was a legatee in the will.
legal and equitable, included therein. - For purposes of reservation and the rights and obligations
- Under the rule of notice, it is presumed that the purchaser created thereby, in connection with the relatives benefited,
has examined every instrument of record affecting the title. the property must not be deemed transmitted to the heirs
Such presumption is irrebutable. from the time the extrajudicial partition was made, but from
- Consistent with the rule in reserva viudal where the person the time said partition was approved by the court.
obliged to reserve (the widowed spouse) had the obligation - The reservoir is bound to register the reservation within 90
to annotate in the Registry of Property the reservable days from the date of adjudication of the property to the
character of the property, in reserva troncal, the reservor heirs by the court.
(the ascendant who inherited from a descendant property - Where a reservable property is sold by the reservoir, without
which the latter inherited from another descendant) has the having registered its reservable character, the obligation to
duty to reserve and therefore, the duty to annotate also. register the same is transferred to the purchaser, if the latter
- The jurisprudential rule requiring annotation in the Registry knew of the reservable character of the property.
of Property of the right reserved in real property subject of
reserva viudal insofar as it is applied to reserva troncal
stays despite the abolition of reserva viudal in the New Civil
Code. This rule is consistent with the rule provided in the
second paragraph of Section 51 of P.D. 1529, which
provides that: "The act of registration shall be the operative
act to convey or affect the land insofar as third persons are
concerned."
Rioso v. Rocha
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Neither can he impose upon the same any Art. 905. Every renunciation or compromise as
burden, encumbrance, condition, or regards a future legitime between the person
substitution of any kind whatsoever. owing it and his compulsory heirs is void, and
the latter may claim the same upon the death
• As already laid down in Art886, the legitime is not within of the former; but they must bring to collation
the testator’s control. It passes to the compulsory heirs whatever they may have received by virtue of
by strict operation of law. the renunciation or compromise.
• Testator Devoid of Power to Deprive Compulsory • Reason for the Rule
Heirs of Legitime
Before the predecessor’s death,
It is the law, not the testator, the heir’s right is simply inchoate.
which determines the transmission of the legitimes.
Consequently, it is not within the testator’s power to
• Duty to Collate
deprive the compulsory heirs of their legitime.
Any property which the
EXCEPTION – the only instance compulsory heir may have gratuitously received
in which the law allows the testator to deprive the from his predecessor by virtue of the renunciation or
compulsory heirs of their legitimes is compromise will be considered an advance on his
DISINHERITANCE under Arts915-923, the grounds legitime and must be duly credited.
being set forth under Arts919-921.
• EXCEPTIONS – When the Law grants the Testator • QUESTION – Is a transaction between the prospective
Some Power over the Legitime compulsory heir and another prospective compulsory
1. Article 1080 par2 – heir, or between a prospective compulsory heir and a
“A parent who, in the interest of his or her stranger, interdicted?
family, desires to keep any agricultural, industrial, YES under Article 1347 par2:
or manufacturing enterprise intact, may avail “No contract may be entered into upon future
himself of the right granted him in this article, by inheritance except in cases expressly provided by
ordering that the legitime of the other children to law.”
whom the property is not assigned, be paid in
cash.”
Art. 906. Any compulsory heir to whom the
2. Article 1083 par1 – testator has left by any title less than the
“Every co-heir has a right to demand the legitime belonging to him may demand that
division of the estate unless the testator should the same be fully satisfied.
have expressly forbidden its partition, in which
case the period of indivision shall not exceed 20 • RIGHT OF COMPLETION OF LEGITIME
years as provided in article 494. This power of the
testator to prohibit division applies to the legitime.” This rule applies only to
transmissions by gratuitous title.
• Restrictions on Legitime Imposed by Law
A. Article 159, Family Code • Cross-References, related articles
“The Family Home shall continue despite the Art855 – if the title by which the
death of one or both spouses or of the unmarried testator transmitted property is intestate succession
head of the family for a period of 10 years or for Art. 855. The share of a child or descendant
as long as there is a minor beneficiary, and the omitted in a will must first be taken from the
heirs cannot partition the same unless the court part of the estate not disposed of by the will, if
finds compelling reasons therefor. This rule shall any; if that is not sufficient, so much as may be
apply regardless of whoever owns the property or necessary must be taken proportionally from the
shares of the other compulsory heirs.
constituted the family home.”
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• Donations Inter Vivos to Compulsory Heirs • This provision implements the principle laid down in
Donations inter vivos to a Articles 872, 886 and 904 - the inviolability of the
compulsory heir shall be imputed to his legitime, i.e. legitime.
considered as an advance on his legitime. • Thus, if the legitimes are impaired, the gratuitous
dispositions of the testator [either inter vivos or mortis
Coverage of Rule causa] have to be set aside or reduced as may be
o Applies to ALL compulsory heirs required to cover the legitimes.
o Note that these 2 articles omit [inadvertently]
ascendants who succeed as compulsory heirs. • Method of Reduction
This rule applies to them as well. There is an order of priorities to
o For obvious reasons, this rule has no be observed in the reduction of the testator’s
gratuitous dispositions, thus –
application to a surviving spouse.
A. First, reduce pro rata the non-preferred legacies
and devises [Art911 (2)], and the testamentary
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These reductions shall be to the • In either case, there should be pecuniary reimbursement
extent required to complete the legitimes, even if in to the party who did not get his physical portion of the
the process the disposition is reduced to nothing. thing devised.
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SECTION 6. –
DISINHERITANCE
• Art904 sets forth the rule that the testator cannot deprive
the compulsory heirs of the legitime. The sole exception
to this rule is DISINHERITANCE. Thus, disinheritance is
the only instance in which the testator may deprive his
compulsory heirs of their legitime.
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• There are also 8 Causes for the Disinheritance of culpability on the part of the parents will
Parents or Ascendants, whether Legitimate or provide grounds for disinheritance.
Illegitimate. [Exclusive enumeration] a) Judicial deprivation of parental
1. When the parents have abandoned their authority based on ground of sexual
children or induced their daughters to live a abuse [Arts232 FC]
corrupt or immoral life or attempted against b) Loss of parental authority as a result of
their virtue Judicial declaration of abandonment of
o This paragraph encompasses 3 grounds: a child [Art229(3) FC]
c) Judicial Deprivation of Parental
a) Abandonment – also includes Authority on the grounds of:
those penalized by law under articles i. Excessively harsh or
276-277 of the RPC, Article 59 of cruel treatment of the child
PD603 and all conduct constituting ii. Giving the child
repeated or total refusal or failure to corrupting orders, counsel or
care for the child. According to the example.
case of Chua v. Cabangbang, mere iii. Compelling the child
acquiescence without more is not to beg, or
sufficient to constitute abandonment. iv. Subjecting the child
However, when the mother completely or allowing him to be subjected to
withheld her presence, her love, her acts of lasciviousness [Art231 FC]
care and the opportunity to show
maternal affection; and totally denied 7. Refusal to support the Children or
her support and maintenance, her Descendants without justifiable cause
silence and inaction having been
prolonged for such a time, then it can 8. Attempt by one of the parents against the life
be legally inferred that there is of the other, unless there has been a
abandonment. Question – will consent reconciliation between them.
to adoption of a child constitute
abandonment? • Paragraphs 2, 3, 4, 5 and 7 are the same grounds for
disinheritance of a descendant or child.
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1. Spouse is convicted of an Attempt against the heir which reveals the testator’s intent to forgive the
life of the Testator, his or her descendants or offense.
ascendants. a) If Express Pardon – a general pardon extended by
2. Spouse Accused Testator of a Crime for which the testator on his deathbed to all who have
the law prescribes imprisonment for 6 years or offended him will not suffice; it must be a pardon
more, and the accusation is fond to be False. expressly and concretely extended to the
offender, who accepts it.
3. The Spouse, by Fraud, Violence, Intimidation, b) If conduct – the intent to forgive must be clear.
or Undue Influence causes the testator to This is ultimately a question of fact which will be
make a Will or change one already made. resolved, in case of controversy, by the courts.
4. Spouse has given cause for legal separation
o A decree of legal separation is not required. • Effect of Reconciliation
a) If it occurs before disinheritance is made – right to
o According to Art55 of the Family Code, there
disinherit is extinguished
are 10 grounds for legal separation:
b) If it occurs after the disinheritance is made –
a) Repeated physical violence or grossly disinheritance is set aside. The effects of setting
abusive conduct directed against the aside the disinheritance are:
petitioner, a common child or a child of i. The disinherited heir is restored
the petitioner [natural or adopted]. to his legitime
b) Physical violence or moral pressure to ii. If the disinheriting will did not
compel the petitioner to change religious dispose of the disposable portion, the
or political affiliation disinherited heir is entitled to his
c) Attempt of respondent to corrupt or proportionate share [in intestacy] if any, of the
induce the petitioner, a common child, or disposable portion.
a child of petitioner [natural or adopted] iii. If the disinheriting will disposed
to engage in prostitution or connivance in of disposable portion [or any part thereof] in
such corruption or inducement. favor of testamentary heirs, legatees or
d) Final judgment sentencing the devisees, such dispositions remain valid.
respondent to imprisonment of more than
6 years, even if pardoned. • Article 922 is in relation to Article 1033.
e) Drug addiction or habitual alcoholism of
the respondent
f) Lesbianism or homosexuality of the
respondent
g) Contracting by the respondent of a
subsequent bigamous marriage, whether
in the Philippines or abroad
h) Sexual infidelity or perversion
i) Attempt by the respondent against the
life of the petitioner
j) Abandonment of the petitioner by
respondent without justifiable cause for
more than 1 year. Art. 923. The children and descendants of the
5. Has given grounds for loss of parental person disinherited shall take his or her place
authority and shall preserve the rights of compulsory
heirs with respect to the legitime; but the
6. Unjustifiable refusal to support the children or
disinherited parent shall not have the
the other spouse
usufruct or administration of the property
• Paragraphs 1, 2, 3, 5 and 6 are also enumerated under which constitutes the legitime.
grounds for disinheritance of a descendant or child.
• Right of Representation in Disinheritance
The right of representation is
Art. 922. A subsequent reconciliation between the granted only to descendants of disinherited
offender and the offended person deprives descendants.
the latter of the right to disinherit, and This rule is laid down in Art972
par1 which provides: “the right of representation
renders ineffectual any disinheritance that takes place in the direct descending line, but never
may have been made. in the ascending.”
Thus, a disinherited child will be
• Meaning of Reconciliation – either an express pardon represented by his children or other descendants.
extended by the testator to the offending heir or
unequivocal conduct of the testator towards the offending
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However, if the heir disinherited Art. 925. A testator may charge with legacies and
is a parent/ascendant or spouse, the children or the devises not only his compulsory heirs but
descendants of the disinherited heir do not have any also the legatees and devisees.
right of representation. Thus, this article is carelessly The latter shall be liable for the charge
worded. only to the extent of the value of the legacy or
the devise received by them. The compulsory
• Extent of Representation heirs shall not be liable for the charge beyond
The representative take the the amount of the free portion given them.
place of the disinherited heir not only with respect to
the legitime, but also to any intestate portion that the
Art. 926. When the testator charges one of the
disinherited heir would have inherited.
Representation therefore occurs
heirs with a legacy or devise, he alone shall
in compulsory and intestate succession, but not in be bound.
testamentary succession. Should he not charge anyone in
particular, all shall be liable in the same
CASE proportion in which they may inherit.
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complied with. If the owner is unwilling to part with Article 957 par 2 can be applied and the
the thing, the legatee/devisee should be given the legacy/devise should be deemed revoked.
monetary equivalent.
If the testator erroneously • Legacy / Devise to remove an encumbrance over a thing
believed that the thing belonged to him – the legacy belonging to the legatee / devisee under Art932 par2 –
or devise is VOID. VALID, if the encumbrance can be removed for a
consideration.
o EXCEPT if subsequent to the making of the
disposition, the thing is acquired by the testator • Legacy / Devise of a thing pledged or mortgaged under
onerously or gratuitously, the disposition is Article 934 – the encumbrance must be removed by
validated. paying the debt, UNLESS the testator intended
otherwise.
If the testator knew that the
thing did not belong to him but did not order its • Legacy of Credit or Remission [Articles 935-937]
acquisition – the Code is SILENT on this. The most
Applies only to amount still
rational solution seems to be that such a disposition
unpaid at the time of the testator’s death [under
should be considered VALID, because:
Art935]
a) The fact that the testator, with knowledge of
the other person’s ownership, bequeathed the Revoked if testator
subsequently sues the debtor for collection [[Article
thing, implies an order to acquire
b) At worst, there is a doubt, and doubts 936]
should be resolved in favor of testacy [Arts If Generic, applies only to those
788 and 791] existing at the time of execution of the will [under
Articles 937 and 793], unless otherwise provided.
Art. 788. If a testamentary disposition
admits of different interpretations, in case of
doubt, that interpretation by which the Art. 938. A legacy or devise made to a creditor
disposition is to be operative shall be preferred. shall not be applied to his credit, unless the
Art. 791. The words of a will are to receive testator so expressly declares.
an interpretation which will give to every In the latter case, the creditor shall have
expression some effect, rather than one which
will render any of the expressions inoperative;
the right to collect the excess, if any, of the
and of two modes of interpreting a will, that is to credit or of the legacy or devise.
be preferred which will prevent intestacy.
Art. 939. If the testator orders the payment of
• Legacy / Devise of a Thing Already Belonging to the what he believes he owes but does not in fact
Legatee / Devisee or Subsequently Acquired by Him owe, the disposition shall be considered as
[Articles 932 and 933] not written. If as regards a specified debt
If the thing already belonged to more than the amount thereof is ordered paid,
the legatee/devisee at the time of the execution of the excess is not due, unless a contrary
the will – the legacy or devise is VOID. It is not
intention appears.
validated by an alienation by the legatee /devisee
subsequent to the making of the will. The foregoing provisions are without
prejudice to the fulfillment of natural
NOTE – articles 932 par 1 and obligations.
933 par 1 say essentially the same thing and should
be merged.
• Legacy / Devise to a Creditor [Art938]
If the thing was owned by General Rule – will be treated
another person at the time of the making of the will like any other legacy / devise and therefore will not
and acquired thereafter by the legatee/devisee: be imputed to the debt.
a) If the testator erroneously believed that it
belonged to him – legacy or devise is VOID
Exception – will be imputed to
the debt if the testator so provides, and if the debt
b) If the testator was not in error –
exceeds the legacy / devise, the excess may be
- If the thing was acquired onerously by demanded as an obligation of the estate.
legatee/devisee – the legatee or devisee NOTE – if the testator does
is entitled to reimbursement. provide that the legacy / devise should be imputed to
- If the thing was acquired gratuitously by the debt and the amount of the debt is equal to or
legatee/devisee – nothing more is due. more than the value of the legacy/devise it would be
If the thing was owned by the folly for the creditor to accept the “benefit.” He will be
testator at the time of the making of the will and much better off renouncing the legacy/devise and
acquired thereafter from him by the legatee/devisee filing a claim for the credit.
– Articles 932 and 933 are SILENT on this, but
• Testamentary Instruction to Pay a Debt [Art939]
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a) This is not a testamentary disposition, but merely Art. 941. A legacy of generic personal property
a direction to discharge a civil obligation. shall be valid even if there be no things of the
b) Instruction to pay non-existing debt – should be same kind in the estate.
DISREGARDED, because this would solution A devise of indeterminate real property
indebiti. shall be valid only if there be immovable
c) Instruction to pay more than what is due – property of its kind in the estate.
effective only as to what is due, unless the bigger The right of choice shall belong to the
amount specified constitutes a natural obligation executor or administrator who shall comply
under Articles 1423 – 1430. with the legacy by the delivery of a thing
which is neither of inferior nor of superior
quality.
Art. 940. In alternative legacies or devises, the
choice is presumed to be left to the heir upon
Art. 942. Whenever the testator expressly leaves
whom the obligation to give the legacy or
the right of choice to the heir, or to the
devise may be imposed, or the executor or
legatee or devisee, the former may give or the
administrator of the estate if no particular heir
latter may choose whichever he may prefer.
is so obliged.
If the heir, legatee or devisee, who may
Art. 943. If the heir, legatee or devisee cannot
have been given the choice, dies before
make the choice, in case it has been granted
making it, this right shall pass to the
him, his right shall pass to his heirs; but a
respective heirs.
choice once made shall be irrevocable.
Once made, the choice is irrevocable.
In the alternative legacies or devises, • Generic legacies / devises
except as herein provided, the provisions of
this Code regulating obligations of the same • Rules on Validity [Article 941]
A. Generic Legacy – valid even if no such movables
kind shall be observed, save such
exist in the testator’s estate upon his death. The
modifications as may appear from the estate will simply have to acquire what is given by
intention expressed by the testator. legacy.
B. Generic Devise – valid only if there exists such an
• Alternative legacies / devises immovable in the testator’s estate at the time of
Definition – One which provides his death.
that, among several things mentioned, only one is to
be given. Note – this distinction as found
in the Spanish Code perpetuates the rule in the
• Right of Choice Partidas even if it has become artificial and arbitrary
General Rule in modern times.
1) The estate, through the executor or
administrator – in a direct legacy or devise • Right of Choice [Article 942-943]
2) The heir, legatee, or devisee charged –
General Rule – the executor or
in a subsidiary legacy or devise
administrator, acting for the estate.
These parties are, analogously, o Exception – if the testator gives the right of
in the position of the debtor. choice to the legatee / devisee, or to the heirs
on whom the obligation to give the benefit is
Exception – the
imposed [in a subsidiary legacy or devise]
legatee/devisee, if the testator so provides.
Limitation on Choice – the
• If the person who is to choose dies before choice is choice must be limited to something which is neither
made: superior nor inferior in quality. This rule applies
a) If the choice belonged to executor or administrator whether the choice belongs to the
– the right is transmitted to his successor in office. executor/administrator or the legatee/devisee.
b) If the choice belongs to an heir, legatee or devisee o In relation to Art1246 of the CC – “When the
– the right is transmitted to his own heirs. obligation consists in the delivery of an
indeterminate or generic thing, whose quality
• The choice is irrevocable. and circumstances have not been stated, the
• Provisions suppletorily governing – Articles 1199-1205, creditor cannot demand a thing of superior
on alternative obligations. quality. Neither can the debtor deliver a thing of
inferior quality. The purpose of the obligation
and other circumstances shall be taken into
consideration.”
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Pure and Upon a. if from Upon the legatee or devisee, who shall, therefore,
Generic Testator’s testator’s determi- bear its loss or deterioration, and shall be
death estate – nation, benefited by its increase or improvement,
upon unless
testator’s testator without prejudice to the responsibility of the
death provides executor or administrator.
b. if otherwise
acquired [Art949] Art. 949. If the bequest should not be of a specific
from a 3rd and determinate thing, but is generic or of
person – quantity, its fruits and interests from the time
upon
acquisition
of the death of the testator shall pertain to the
With a Upon the Upon arrival Upon the legatee or devisee if the testator has
Suspensi arrival of of the term, arrival of expressly so ordered.
ve Term the term but the the term
right to it [implied Art. 950. If the estate should not be sufficient to
vests upon from cover all the legacies or devises, their
the Art885]
payment shall be made in the following order:
testator’s
death (1) Remuneratory legacies or devises;
[under (2) Legacies or devises declared by the
Art878] testator to be preferential;
With a Upon the Upon the Upon the (3) Legacies for support;
Suspensi happenin testator’s happening (4) Legacies for education;
ve g of the death, if the of the (5) Legacies or devises of a specific,
Conditio condition condition is condition,
n fulfilled unless
determinate thing which forms a part of
[under testator the estate;
Art1187] provides (6) All others pro rata.
otherwise
[Art884 in • Order of Preference among Legacies and Devises in
rel. to case the Estate is Not Sufficient for All of them
Art1187] 1. Remuneratory legacies or devises
2. Legacies or devises declared by the testator to be
Art. 1187. The effects of a conditional obligation to preferential
give, once the condition has been fulfilled, shall 3. Legacies for support
retroact to the day of the constitution of the 4. Legacies for education
obligation. Nevertheless, when the obligation 5. Legacies or devises of a specific, determinate
imposes reciprocal prestations upon the parties, the thing which forms a part of the estate
fruits and interests during the pendency of the 6. All others, pro rata
condition shall be deemed to have been mutually
compensated. If the obligation is unilateral, the • Article 950 and Article 911
debtor shall appropriate the fruits and interests
received, unless from the nature and circumstances Article 911 also contains a rule
of the obligation it should be inferred that the for reduction of legacies and devises and the order
intention of the person constituting the same was of preference there is different: it simply provides
different. that all the non-preferred legacies/devises will be
In obligations to do and not to do, the courts shall
reduced pro rata, and the preferred legacies/devises
determine, in each case, the retroactive effect of the are reduced last. It is a rule different from that set
condition that has been complied with. forth in Art950.
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o If both onerous – same rule, may accept or kind, in accordance with the provisions
renounce either or both of Article 928.
o If one gratuitous and the other onerous – the
recipient cannot accept the gratuitous and
renounce the onerous. Any other combination
• This article enumerates the instances when the
legacy/devise is REVOKED BY OPERATION OF LAW
is permitted.
1. TRANSFORMATION
Legacy/Devise to One who is o If for example the testator converts a
Also a Compulsory Heir – the recipient may accept plantation to a fishpond.
either or both, the legacy/devise and the legitime. [in 2. ALIENATION
relation to Art1055] o The alienation by the testator may be
gratuitous or onerous.
Effect if the Will Provides o The alienation revokes the legacy/devise
Otherwise – all of the above rules apply in the
even if for any reason the thing reverts to
absence of a stipulation in the will providing
the testator.
otherwise. If there is a stipulation, the testator’s
o Exceptions
wishes shall govern.
a) If the reversion is caused by the
annulment of the alienation and the
cause for annulment was vitiation of
Art. 956. If the legatee or devisee cannot or is consent on the grantor’s part, either
unwilling to accept the legacy or devise, or if by reason or incapacity or duress.
the legacy or devise for any reason should
b) If the reversion is by virtue of
become ineffective, it shall be merged into the redemption in a sale with pacto de
mass of the estate, except in cases of retro.
substitution and of the right of accretion.
3. TOTAL LOSS
• Rules in Case of Repudiation by or Incapacity of o This will be a cause for revocation only if
Legatee/Devisee it takes place before the testator’s death.
1. Primarily – SUBSTITUTION o Fortuitous loss after the testator’s death
2. Secondarily – ACCRETION will not constitute revocation because
3. Tertiarily – INTESTACY legally, the disposition takes effect upon
death.
o Therefore, fortuitous loss after the
Art. 957. The legacy or devise shall be without testator’s death will simply be an instance
effect: of “res perit domino” and will be borne by
(1) If the testator transforms the thing the legatee/devisee.
bequeathed in such a manner that it
does not retain either the form or the
Art. 958. A mistake as to the name of the thing
denomination it had;
bequeathed or devised, is of no consequence,
(2) If the testator by any title or for any
if it is possible to identify the thing which the
cause alienates the thing bequeathed or
testator intended to bequeath or devise.
any part thereof, it being understood
that in the latter case the legacy or • This principle is already set forth in Art789
devise shall be without effect only with
respect to the part thus alienated. If
after the alienation the thing should Art. 959. A disposition made in general terms in
again belong to the testator, even if it be favor of the testator's relatives shall be
by reason of nullity of the contract, the understood to be in favor of those nearest in
legacy or devise shall not thereafter be degree.
valid, unless the reacquisition shall
have been effected by virtue of the • This article is misplaced because it applies not just to
exercise of the right of repurchase; legatee/devisees but to all testamentary heirs as well. It
(3) If the thing bequeathed is totally lost should be placed under the chapter on “Institution of
during the lifetime of the testator, or Heir.”
after his death without the heir's fault.
CASES Articles 924-959
Nevertheless, the person obliged to pay
the legacy or devise shall be liable for Belen v. BPI
eviction if the thing bequeathed should
not have been determinate as to its
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DIRECT LINE
Art. 967. Full blood relationship is that existing
DEGREE between persons who have the same father
and the same mother.
COLLATERAL Half blood relationship is that existing
LINE between persons who have the same father,
but not the same mother, or the same mother,
but not the same father.
• COMPUTATION OF DEGREES
A. Direct Line – there is no legal limit to the number • Importance of distinction between full-blood and half-
of degrees for entitlement to intestate succession. blood relationship – with reference to brothers and
The practical limit is of course, human mortality. sisters and nephews and nieces, there is a ratio of 2:1 for
o Mode of Counting Degrees in Direct Line full-blood and half-blood relationship, respectively.
- One generation = one degree [Arts1006 and 1008]
- Parent to child = 1 degree • With respect to collateral relatives, the full-blood and
- Grandparent to Grandchild = 2 degrees half-blood relationship is NOT MATERIAL.
- Great-Grandparent to Great-Grandchild
= 3 degrees
Art. 968. If there are several relatives of the same
B. Collateral Line – computation of degree is degree, and one or some of them are
important in the collateral line because intestate unwilling or incapacitated to succeed, his
succession extends only to the FIFTH [5th] portion shall accrue to the others of the same
DEGREE of Collateral relationship (Art1010) degree, save the right of representation when
o Mode of Counting Degrees in the Collateral it should take place.
Line [Art966 par3]
• ACCRETION IN INTESTACY
i. From the reference point, ascend to
nearest common ancestor [if there There is accretion in intestacy
are more than 1 nearest common among heirs of the same degree, in case of
ancestor, choose any one.] PREDECEASE, INCAPACITY or RENUNCIATION
ii. Then descend to the other reference of any one of them. [Art1015]
point 1) In case of predecease or incapacity,
iii. Number of generations constituting representation, if proper, will PREVENT
the ascent and the descent is the accretion from occurring.
degree of the collateral relationship.
2) Relatives must be in the same kind of
o Collaterals by Degrees relationship – for accretion to take place the
- First degree – none heirs involved must be in the same kind of
- Second degree – brothers / sisters relationship to the decedent. This is because
- Third degree of the principle of the preference of lines in
i. Uncles / Aunts intestate succession. Thus, there can be no
ii. Nephews / Nieces accretion among a grandchild, a grandparent
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be called to inherit, and the law needs no o The rationale for the rule barring an adopted
resort to fictions but merely to make use of its from representing and being represented is
power to designate those who are to take the that the legal relationship created by adoption
inheritance. is strictly between the adopted and the
adopted. It does not extend to the relatives of
• INSTANCES WHEN REPRESENTATION OPERATES either party. [Teotico v. Del Val]
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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
children succeed the parents and other ascendants,
without distinction as to sex or age, and even if
they should come from different marriages.
An adopted child succeeds to the property of
the adopting parents in the same manner as a
legitimate child.
2. Legitimate Whole estate with ½ share of 1 Art. 983. If illegitimate children survive with
children and legit child for EACH illegitimate legitimate children, the shares of the former shall
Illegitimate child be in the proportions prescribed by Article 895.
children Art. 176 FAMILY CODE. Illegitimate children shall use
the surname and shall be under the parental
authority of their mother, and shall be entitled to
support in conformity with this Code. The legitime
of each illegitimate child shall consist of one-half
of the legitime of a legitimate child. Except for
this modification, all other provisions in the Civil
Code governing successional rights shall remain
in force.
3. Legitimate Whole estate, divided equally, Art. 996. If a widow or widower and legitimate
children and including the surviving spouse children or descendants are left, the surviving
surviving spouse spouse has in the succession the same share as
that of each of the children.
4. Legitimate Whole estate, the spouse getting Art. 999. When the widow or widower survives with
children, the share of 1 legitimate child legitimate children or their descendants and
surviving spouse and the illegitimate child getting illegitimate children or their descendants,
and illegitimate ½ the share of 1 legitimate child. whether legitimate or illegitimate, such widow or
children widower shall be entitled to the same share as
that of a legitimate child.
Art. 176 FAMILY CODE. Illegitimate children shall use
the surname and shall be under the parental
authority of their mother, and shall be entitled to
support in conformity with this Code. The legitime
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5. Legitimate Whole estate, equally Art. 985. In default of legitimate children and
descendants of the deceased, his parents and
parents alone
ascendants shall inherit from him, to the
exclusion of collateral relatives.
6. Legitimate Whole estate, division equally by Art. 987. In default of the father and mother, the
ascendants line ascendants nearest in degree shall inherit.
Should there be more than one of equal degree
belonging to the same line they shall divide the
inheritance per capita; should they be of different
lines but of equal degree, one-half shall go to the
paternal and the other half to the maternal
ascendants. In each line the division shall be
made per capita.
7. Legitimate Legitimate parents get ½ of the Art. 991. If legitimate ascendants are left, the
parents and estate divided equally between illegitimate children shall divide the inheritance
illegitimate them and the illegitimate children with them, taking one-half of the estate, whatever
children get ½ of the estate divided also be the number of the ascendants or of the
equally illegitimate children.
8. Legitimate Legit parents get ½ of the estate Art. 997. When the widow or widower survives with
parents and and the surviving spouse gets legitimate parents or ascendants, the surviving
surviving spouse the other half spouse shall be entitled to one-half of the estate,
and the legitimate parents or ascendants to the
other half.
9. Legitimate Legit parents get ½, the surviving Art. 1000. If legitimate ascendants, the surviving
parents, spouse gets ¼ and the spouse, and illegitimate children are left, the
surviving spouse illegitimate children get ¼. ascendants shall be entitled to one-half of the
and illegitimate inheritance, and the other half shall be divided
children between the surviving spouse and the illegitimate
children so that such widow or widower shall have
one-fourth of the estate, and the illegitimate
children the other fourth.
10. Illegitimate The whole estate, divided equally Art. 988. In the absence of legitimate descendants
children or ascendants, the illegitimate children shall
succeed to the entire estate of the deceased.
11. Illegitimate The illegitimate children get ½ Art. 998. If a widow or widower survives with
children and and the surviving spouse gets illegitimate children, such widow or widower shall
surviving spouse the other ½ be entitled to one-half of the inheritance, and the
illegitimate children or their descendants,
whether legitimate or illegitimate, to the other
half.
12. Surviving The whole estate Art. 994. In default of the father or mother, an
spouse illegitimate child shall be succeeded by his or her
surviving spouse who shall be entitled to the
entire estate.
If the widow or widower should survive with
brothers and sisters, nephews and nieces, she or
he shall inherit one-half of the estate, and the
latter the other half.
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14. Surviving Spouse gets ½ and the Art. 1001. Should brothers and sisters or their
spouse and legitimate BSNN get ½, with the children survive with the widow or widower, the
legitimate nephews and nieces inheriting by latter shall be entitled to one-half of the
brothers, sisters, representation in proper cases inheritance and the brothers and sisters or their
nephews and children to the other half.
nieces
15. Surviving Spouse gets ½ while illegitimate Art. 994. In default of the father or mother, an
spouse and BSNN get ½, with representation illegitimate child shall be succeeded by his or her
illegitimate surviving spouse who shall be entitled to the
brother, sisters, entire estate.
nephews and If the widow or widower should survive with
nieces brothers and sisters, nephews and nieces, she or
he shall inherit one-half of the estate, and the
latter the other half.
16. Illegitimate The whole estate Art. 993. If an illegitimate child should die without
parents issue, either legitimate or illegitimate, his father
or mother shall succeed to his entire estate; and
if the child's filiation is duly proved as to both
parents, who are both living, they shall inherit
from him share and share alike.
17. Illegitimate Illegitimate parents are excluded Art. 993. If an illegitimate child should die without
parents and any by the children issue, either legitimate or illegitimate, his father
children or mother shall succeed to his entire estate; and
if the child's filiation is duly proved as to both
parents, who are both living, they shall inherit
from him share and share alike.
18. Legitimate Whole estate, half blood gets ½ Art. 1004. Should the only survivors be brothers and
brothers and of full blood’s share [2:1] sisters of the full blood, they shall inherit in equal
sisters shares.
Art. 1006. Should brother and sisters of the full
blood survive together with brothers and sisters
of the half blood, the former shall be entitled to a
share double that of the latter.
19. Legitimate Whole estate, 2:1 for half blood, Art. 1005. Should brothers and sisters survive
brothers & with representation for nephews together with nephews and nieces, who are the
sisters, nephews and nieces children of the descendant's brothers and sisters
& nieces of the full blood, the former shall inherit per
capita, and the latter per stirpes.
Art. 1008. Children of brothers and sisters of the half
blood shall succeed per capita or per stirpes, in
accordance with the rules laid down for the
brothers and sisters of the full blood.
20. Nephews and Uncles and aunts are excluded. Art. 1009. Should there be neither brothers nor
nieces with The nephews and nieces get the sisters nor children of brothers or sisters, the
uncles and aunts whole estate other collateral relatives shall succeed to the
estate.
The latter shall succeed without distinction of
lines or preference among them by reason of
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21. Illegitimate Whole estate, 2:1 full and half No article governing
brothers and blood
sisters
22. Illegitimate Whole estate No article governing
brothers &
sisters, nephews
& nieces
23. Nephews and Whole, PER CAPITA, 2:1 ratio Art. 975. When children of one or more brothers or
nieces sisters of the deceased survive, they shall inherit
from the latter by representation, if they survive
with their uncles or aunts. But if they alone
survive, they shall inherit in equal portions.
Art. 1008. Children of brothers and sisters of the half
blood shall succeed per capita or per stirpes, in
accordance with the rules laid down for the
brothers and sisters of the full blood.
24. Other collaterals Whole, PER CAPITA, nearer Art. 1009. Should there be neither brothers nor
excludes the more remote in sisters nor children of brothers or sisters, the
degree other collateral relatives shall succeed to the
estate.
The latter shall succeed without distinction of
lines or preference among them by reason of
relationship by the whole blood.
Art. 1010. The right to inherit ab intestato shall not
extend beyond the fifth degree of relationship in
the collateral line.
25. The state Whole estate Art. 1011. In default of persons entitled to succeed
in accordance with the provisions of the
preceding Sections, the State shall inherit the
whole estate.
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Art. 981. Should children of the deceased and Art. 986. The father and mother, if living, shall
descendants of other children who are dead, inherit in equal shares.
survive, the former shall inherit in their own Should one only of them survive, he or
right, and the latter by right of representation. she shall succeed to the entire estate of the
child.
Art. 982. The grandchildren and other
descendants shall inherit by right of Art. 987. In default of the father and mother, the
representation, and if any one of them should ascendants nearest in degree shall inherit.
have died, leaving several heirs, the portion Should there be more than one of equal
pertaining to him shall be divided among the degree belonging to the same line they shall
latter in equal portions. divide the inheritance per capita; should they
be of different lines but of equal degree, one-
• Grandchildren do not inherit per capita even if all children half shall go to the paternal and the other half
die – they inherit per stirpes, EXCEPT if ALL children to the maternal ascendants. In each line the
renounce, then the grandchildren will inherit in their own division shall be made per capita.
right / per capita.
• There is no right of representation in the ascending line.
Art. 983. If illegitimate children survive with CASE FOR ARTS. 978-987
legitimate children, the shares of the former
shall be in the proportions prescribed by Sayson v. CA
Article 895.
• The proportion of the shares of legitimate and illegitimate SUBSECTION 3. - Illegitimate Children
children has been simplified to 2:1 by virtue of the
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Art. 988. In the absence of legitimate descendants declared because the will does not contain an institution of
or ascendants, the illegitimate children shall heir.
- The probate court however approved the project of
succeed to the entire estate of the deceased.
partition.
Art. 989. If, together with illegitimate children, - It appears that Teodoro was an acknowledged natural child
and not a legitimate child was the statement in the will of
there should survive descendants of another his father, Luis Rafael Yangco, dated June 14, 1907, that
illegitimate child who is dead, the former shall Teodoro and his three other children were his
succeed in their own right and the latter by acknowledged natural children.
right of representation.
WON Juanita is entitled to a share in intestate estate of
• Only difference – an illegitimate child can be represented Teodoro. (Juanita is a legitimate daughter of Romana and
Tomas.)
bi either an illegitimate or legitimate child of his. While a
- NO. Since Teodoro was an acknowledged natural child or
legitimate child can only be represented by a legitimate
was illegitimate and since Juanita was the legitimate child
child of his. of Jose Corpus, himself a legitimate child, we hold that
appellant Tomas Corpus has no cause of action for the
recovery of the supposed hereditary share of his mother,
Art. 990. The hereditary rights granted by the two Juanita Corpus, as a legal heir, in Yangco's estate. Juanita
preceding articles to illegitimate children Corpus was not a legal heir of Yangco because there is no
shall be transmitted upon their death to their reciprocal succession between legitimate and illegitimate
relatives.
descendants, who shall inherit by right of - Corpus concedes that if Teodoro R. Yangco was a natural
representation from their deceased child, he (Tomas Corpus) would have no legal personality
grandparent. to intervene in the distribution of Yangco's estate.
- Art. 992 of the NCC provides that "an illegitimate child has
no right to inherit ab intestato from the legitimate children
and relatives of his father or mother; nor shall such children
or relatives inherit in the same manner from the illegitimate
Art. 991. If legitimate ascendants are left, the child."
- The rule is based on the theory that the illegitimate child is
illegitimate children shall divide the disgracefully looked upon by the legitimate family while the
inheritance with them, taking one-half of the legitimate family is, in turn, hated by the illegitimate child.
estate, whatever be the number of the
ascendants or of the illegitimate children.
Leonardo v. CA
Art. 992. An illegitimate child has no right to
inherit ab intestato from the legitimate - Francisca Reyes died intestate and was survived by her
children and relatives of his father or mother; two daughters and grandson, who is the son of her 3 rd
nor shall such children or relatives inherit in daughter who predeceased her. Grandson died eventually
the same manner from the illegitimate child. 2 yrs after.
- Leonardo now claims ownership over some properties of
Francisca because he was a son of the grandson.
• MEMORIZE!
• This is the well-known and much criticized successional W/N Leonardo may inherit.
barrier between legitimate and illegitimate relatives of a - SC held that he cannot because:
decedent. - 1. He was an illegitimate child of grandson. He was born
outside of wedlock and while his father’s first marriage is
CASES still subsisting.
- 2. An illegitimate child may not inherit by right of
Corpus v. Corpus representation from the legitimate relatives of his father.
- ART. 992
- Teodoro died without forced heirs. His will was probated.
- At his death his nearest relatives were: Luis (his half
brother), Paz (his half sister), children of his half brother Diaz v. IAC
Pablo), and Juanita (daughter of his half brother Jose). 150 SCRA 645 (1987)
- Teodoro was the son of Luis Rafael Yangco and Ramona
Arguelles, the widow of Tomas Corpus. - Simona Jardin has a niece Felisa Jardin from her legitimate
- Before her union with Luis Rafael Yangco, Ramona had sister Juliana Jardin. At the same time, Simona also had a
begotten five children with Tomas Corpus, two of whom legitimate son, Pablo santero, who predeceased her. On
were the Pablo and Jose. the other hand, Pablo Santero was survived by his 6
- The project of partition was opposed by the estate of Luis acknowledged natural children.
whose counsel contended that intestacy should be - Simona Jardin died intestate with only her niece Felisa as
the sole surviving heir. During the intestate proceedings of
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the estate of Simona, the illegitimate children of Pablo representation", the same is limited by Art 992 to the end
Santero intervened and contended that as the illegitimate that an illegitimate child has no right to inherit ab intestato
children of the deceased Simona they have the right to from the legitimate children and relatives of his father or
succeed by representation. mother (who must be legitimate children themselves).
- The grandchildren premised their rights to succeed under - Third, it is true that while the NCC granted successional
Art 990 of the NCC, which grants the right of representation rights to illegitimate children, those articles must however
to descendants whether legitimate or illegitimate. Hence, by be read in conjunction with Art 992, which prohibits the right
said proviso, the grandchildren has the right to represent of representation from being exercised where the person to
their deceased father in the estate of their grandmother. be represented is a legitimate child. The determining factor
therefore is the legitimacy or illegitimacy of the person to be
Who between Felisa Jardin and the Illegitimate grandchildren "represented." It must be emphasized that illegitimate
of Simona are to be considered the legal heirs of Simona children have only those rights expressly garnted to them
Jardin. by law.
- Felisa Jardin is the sole legal heir of the decedent. - Fourth, the term "relatives", in accordance with the rules of
- The SC held that the grandchildren's reliance in Art 990 is statutory construction, must be understood to have a
misplaced and that the applicable law is Art 992. Art 990 is general and inclusive scope inasmuch as the term is a
not applicable because Pablo Santero is a legitimate child general one. In fact, if the law wants to distinguish it
of Simona while the oppositors are the former's illegitimate expressly says so by adding qualifiers such as the word
children. (Art 990 applies to the right of the descendants "collateral".
of an illegitimate child to inherit by representation.) - From the aforementioned, SC affirmed its earlier decision
- Art 992 provides a barrier or iron curtain in that it prohibits that the illegitimate grandchildren are barred from inheriting
absolutely a succession ab intestato between the ab intestato from Simona's estate..
illegitimate child and the legitimate children and relatives of - ART 992 prohibits absolutely a succession ab intestato
of the father or mother of said legitimate child. Between the between the illegitimate child and the legitimate children
legitimate and illegitimate family there is presumed to be an and relatives of the father or mother (who must be a
intervening antagonism and incompatibility. legitimate child). (However note that descendants, whether
- It is clear therefore from Art 992 of the NCC that the phrase legitimate or illegitimate, can inherit by right of
"legitimate children and relatives of his father and mother" representation if the person to be represented is an
includes Simona Jardin. Hence, the illegitimate illegitimate child.)
grandchilren are barred from asserting their right to
succeed from Simona, who is a legitimate relative of their
father.
- ART 992 prohibits absolutely a succession ab intestato
between the illegitimate child and the legitimate children
and relatives of the father or mother (who must be a
legitimate child). (However note that descendants, whether
legitimate or illegitimate, can inherit by right of
representation if the person to be represented is an Vda. De Crisologo v. CA
illegitimate child.).
- Petitioners in this case filed an action for ownership,
Diaz v. IAC annulment of sale, and delivery of possession of various
182 SCRA 427 (1990) properties against Bernardo Mallillin.
- Bernardo claims that petitioners are complete strangers to
the decedent Julia Capiao inasmuch as Lutgarda is the
- The illegitimate children of Pablo Santero filed a 2nd Motion decedent’s illegitimate daughter, a product of her extra-
for Reconsideration on the decision of the SC holding them marital relations with one Victoriano Taccad.
disqualified from inheriting from the estate of Simona - The petitioners claim to be legal heirs being relatives of
Jardin. (same facts as above) Lutgarda within the fifth civil degree.
- Said grandchildren are now invoking Arts 902, 982, 989 - The lower court said that they cannot inherit because they
and 990 of the New Civil Code to bolster their right to are legitimate relatives of Julia Capiao and they cannot
succeed. inherit from an illegitimate daughter of the latter pursuant to
Article 992 of the Civil Code.
Whether or not the illegitimate children of a legitimate child can
inherit by right of representation from the children and relatives Whether or not the relatives of Julia Capiao, namely, the
of such legitimate parent petitioners in this case, can inherit from Lutgarda Capiao, the
- No. original owner of the properties in dispute.
- First, Articles 902, 989 and 990 clearly speaks of - NO.
successional rights of illegitimate children, which rights - It is clear from the records that the petitioners cannot inherit
are transmitted to their descendants upon death. The the properties in question because of Article 992 of the Civil
descendants (of these illegitimate children) who may Code.
inherit by virtue of the right of representation may be - Being relatives on the legitimate line of Julia Capiao, they
legitimate or illegitimate. cannot inherit from her illegitimate daughter.
- Article 992.
- Second, although Art 982 provides that "the grandchildren
and other descendants shall inherit by right of
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Art. 993. If an illegitimate child should die without shall be entitled to one-half of the inheritance,
issue, either legitimate or illegitimate, his and the illegitimate children or their
father or mother shall succeed to his entire descendants, whether legitimate or
estate; and if the child's filiation is duly illegitimate, to the other half.
proved as to both parents, who are both
living, they shall inherit from him share and Art. 999. When the widow or widower survives
share alike. with legitimate children or their descendants
and illegitimate children or their descendants,
Art. 994. In default of the father or mother, an whether legitimate or illegitimate, such widow
illegitimate child shall be succeeded by his or or widower shall be entitled to the same share
her surviving spouse who shall be entitled to as that of a legitimate child.
the entire estate.
If the widow or widower should survive Art. 1000. If legitimate ascendants, the surviving
with brothers and sisters, nephews and spouse, and illegitimate children are left, the
nieces, she or he shall inherit one-half of the ascendants shall be entitled to one-half of the
estate, and the latter the other half. inheritance, and the other half shall be
divided between the surviving spouse and the
illegitimate children so that such widow or
SUBSECTION 4. - Surviving Spouse widower shall have one-fourth of the estate,
and the illegitimate children the other fourth.
• There are no rules on marriage mortis cause [unlike in
legitimes] Art. 1001. Should brothers and sisters or their
children survive with the widow or widower,
the latter shall be entitled to one-half of the
Art. 995. In the absence of legitimate descendants inheritance and the brothers and sisters or
and ascendants, and illegitimate children and their children to the other half.
their descendants, whether legitimate or
illegitimate, the surviving spouse shall inherit Art. 1002. In case of a legal separation, if the
the entire estate, without prejudice to the surviving spouse gave cause for the
rights of brothers and sisters, nephews and separation, he or she shall not have any of
nieces, should there be any, under article the rights granted in the preceding articles.
1001.
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- Perfecta, on the other hand, cites Art. 996 which provides: whereby they adjudicated between themselves the
"If a widow or widower and legitimate children or properties left by Teodoro.
descendants are left, the surviving spouse has in the - Severino represented himself as the only and forced heir
succession the same share as that of each of the children." and descendant of Teodoro.
- Replying to Perfecta's claim, Claro says the article is unjust - About 18 years after the execution of the said document,
and inequitable to the extent that it grants the widow the petitioners filed a complaint seeking a declaration that they
same share as that of the children in intestate succession, are legal heirs of Teodoro and that they be given the shares
whereas in testate, she is given 1/4 and the only child 1/2. that they are entitled to with respect to the properties of
- Perfecta, on the other hand, contends that Art. 996 should Teodoro.
control, regardless of its alleged inequity, being as it is, a - Petitioners alleged that they are the legitimate children of
provision on intestate succession involving a surviving Guillerma Abenojar, who was the only child of Teodoro with
spouse and a legitimate child, inasmuch as in statutory his first wife named Florencia Bautista and that while
construction, the plural word "children" includes the Teodoro contracted a 2nd marriage with Antera Mandap and
singular, "child". a 3rd with Maxima Andrada, he did not have any offspring.
They aver that Severino is an illegitimate son of Guillerma
How shall the estate of a person who dies intestate be divided Abenojar.
when the only survivors are the spouse and one legitimate - Private respondents alleged that Teodoro married only
child? once and that was with Maxima. They claimed that
- Art. 892 of the New Civil Code falls under the chapter on Severino is an acknowledged natural child of Teodoro with
Testamentary Succession; whereas Art. 996 comes under Florencia. They aver that Guillerma, the mother of
the chapter on Legal or Intestate Succession. Such being petitioners, was Teodoro’s spurious child with Antera
the case, it is obvious that Claro cannot rely on Art. 892 to Mandap.
support his claim to 3/4 of his father's estate. Art. 892 - Private respondents also alleged that the action had
merely fixes the legitime of the surviving spouse and Art. already prescribed.
888 thereof, the legitime of children in testate succession. - The trial court dismissed the action because of prescription.
While it may indicate the intent of the law with respect to
the ideal shares that a child and a spouse should get when
Whether the action is barred by prescription.
they concur with each other, it does not fix the amount of
- NO. The lower court erred assuming that the extra-judicial
shares that such child and spouse are entitled to when
partition to be merely a voidable contract and not a void
intestacy occurs. Because if the latter happens, the
one. Thus, there should first be a determination of the judge
pertinent provision on intestate succession shall apply; i. e.
regarding the legal status of Severino.
Art. 996.
- The SC ordered the lower court to try the case on the
- Children:— It is a maxim of statutory construction that
merits to determine the legal status of the Severino.
words in plural include the singular. 2 So Art. 996 could or
- If the claim of the petitioners is correct, then Severino has
should be read (and so applied): "if the widow or widower
no rights of legal succession from Teodoro because of Art.
and a legitimate child are left, the surviving spouse has the
992 of the NCC.
same share as that of the child."
- Our conclusion (equal shares) seems a logical inference - The right of representation is denied by law to an
from the circumstance that whereas Article 834 of the illegitimate child who is disqualified to inherit ab intestate
Spanish Civil Code, from which Art. 996 was taken, form the legitimate children and relatives of his father.
contained two paragraphs governing two contingencies, the
first, where the widow or widower survives with legitimate Whether Severino may be considered as legal heir of Teodoro.
children (general rule), and the second, where the widow or - The right of Severino to be considered a legal heir of
widower survives with only one child (exception), Art. 996 Teodoro depends on the truth of his allegations that he is
omitted to provide for the second situation, thereby not an illegitimate child of Guillerma, but an acknowledged
indicating the legislator's desire to promulgate just one natural child of Teodoro.
general rule applicable to both situations. - Should it be proved that Severino is not a legal heir, the
- The resultant division may be unfair as some writers portion of the deed of extra-judicial partition adjudicating
explain, — and this we are not called upon to discuss — properties of Teodoro in his favor shall be deemed
but it is the clear mandate of the statute, which we are inexistent and void from the beginning.
bound to enforce. - Art. 992 of the NCC: An illegitimate child has no right to
- When intestacy occurs, a surviving spouse concurring with inherit ab intestato from the legitimate children and relatives
only one legitimate child of the deceased is entitled to one- of his father or mother; nor shall such children or relatives
half of the estate of the deceased spouse under Article 996 inherit in the same manner from the illegitimate child.
of the Civil Code. - Art. 1105 of the NCC: A partition which includes a person
believed to be an heir, but who is not, shall be void only
Pascual v. Pascual Bautista with respect to such person.
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Art. 1003. If there are no descendants, whom the entire free portion went in total intestacy
ascendants, illegitimate children, or a [since A and B simply got their legitimes.
surviving spouse, the collateral relatives shall Therefore, since part of the free
succeed to the entire estate of the deceased portion was given away by will, the remainder should
in accordance with the following articles. be given to Y.
Hence, Caritas Manila gets 1/8
Art. 1004. Should the only survivors be brothers or P75,000. A and B get ½ or P300,000 divided
and sisters of the full blood, they shall inherit between them, so P150,000 each. Y then gets
in equal shares. P225,000. All shares total to the P600,000 estate.
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import equality of shares. Thus, • EXCEPTIONS to general rule that accretion should be
accretion will occur even if the proportional –
sharings are unequal, as long as the
result is co-ownership. a) In testamentary succession, if the testator
provides otherwise,
2) One of the persons thus called die before b) If the obligation is purely persona, and hence
the testator, or renounce the inheritance intransmissible.
or be incapacitated to receive it.
o Renunciation, predecease or incapacity
of one or more but LESS THAN ALL of Art. 1021. Among the compulsory heirs the right
the instituted heirs. of accretion shall take place only when the
free portion is left to two or more of them, or
to any one of them and to a stranger.
Art. 1017. The words "one-half for each" or "in Should the part repudiated be the
equal shares" or any others which, though legitime, the other co-heirs shall succeed to it
designating an aliquot part, do not identify it in their own right, and not by the right of
by such description as shall make each heir accretion.
the exclusive owner of determinate property,
shall not exclude the right of accretion.
In case of money or fungible goods, if the
• 1ST paragraph – 3 kinds of succession: compulsory,
testamentary and intestate. These 3 are distinct,
share of each heir is not earmarked, there although they may operate simultaneously.
shall be a right of accretion. Consequently, accretion is restricted in its operation
within the confines of the particular kind of succession
Art. 1018. In legal succession the share of the involved.
person who repudiates the inheritance shall • 2ND paragraph – there is NO ACCRETION in the
always accrue to his co-heirs. LEGITIME. In most cases, this rule will not substantially
affect the operation of the legitime. The possible
• In intestacy, accretion occurs – significance of this is when it comes to the computation
A. In repudiation or renunciation – accretion is of legitimes of illegitimate children or the surviving
subordinate to representation in intestacy. spouse, when concurring with legitimate children.
B. In predecease, only if representation does not
take place
C. In incapacity or unworthiness, only if Art. 1022. In testamentary succession, when the
representation does not take place. right of accretion does not take place, the
vacant portion of the instituted heirs, if no
• The co-heirs in whose favor accretion occurs must be co-
heirs in the same category as the excluded heir. substitute has been designated, shall pass to
Example, if X dies intestate and the legal heirs of the testator, who shall
is survived by his wife Y and his brothers A, B and receive it with the same charges and
C. If C renounces, his portion goes to A and B by obligations.
accretion. Y is not an accruing co-heir, not being
of the same category or class. • In the testamentary succession, accretion is subordinate
to substitution, if the testator so provided. This is
because substitution is the testator’s express intent,
Art. 1019. The heirs to whom the portion goes by whereas accretion is merely his implied intent.
the right of accretion take it in the same • Obviously, if there is neither substitution nor accretion,
proportion that they inherit. the part left vacant will lapse into intestacy and will be
disposed of accordingly.
• General Rule - Accretion should be proportional.
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• Pars. 1-5 apply only to TESTAMENTARY Succession. 3. Guardian as to disposition before Final
They have no application to the legitime or to intestacy. Accounting
Thus, a person may be disqualified to succeed by will o When disqualification applies – the will
under these paragraphs but will still be entitled to a
must have been executed by the ward
legitime or to an intestate portion.
during the effectivity of the guardianship,
It is unfortunate that these which means at anytime between the
paragraphs, [except Par3, which clearly limits its commencement of the guardianship and its
application to testamentary dispositions] do not state dissolution.
clearly that they only apply to testamentary
succession and not to the legitime or intestacy. o What kind of guardianship covered – terms
of disqualification seem to be limited to
• Par6 is misplaced because it provides for TOTAL
guardians over the property. In view,
disqualification. It should be made a separate article.
however, of the purpose of the prohibition,
• Rationale of Pars. 1-5 – the law, in imposing a the argument that this prohibition should
disqualification, seeks to prevent any possible abuse of apply as well to guardians over the person
the moral or spiritual ascendancy for purposes of is most tenable.
testamentary benefit. o Exception – a guardian who happens to be
• This disqualification is peremptory. No actual duress or an ascendant, descendant, brother, sister
influence need be shown, these are conclusively or spouse of the ward-testator is excluded
presumed. Proof of absence of duress or influence is from the prohibition. Curiously, thus
irrelevant and will not remove the disqualification. exception is not allowed in the other
paragraphs.
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4. Attesting witness or Spouse, Parents, Children (3) Those made to a public officer or his wife,
or any one claiming under such witness, descedants and ascendants, by reason of his
spouse, parents or children office.
o Essentially a reiteration of the In the case referred to in No. 1, the action for
disqualification in Art823, but cast more in declaration of nullity may be brought by the
general terms, since this article nullifies not spouse of the donor or donee; and the guilt of the
just legacies and devises but all donor and donee may be proved by
preponderance of evidence in the same action.
testamentary dispositions made in the
witness’ favor.
CASES FOR ARTICLES 1015-1028
o NOTE – there is a discrepancy between
this paragraph and Art823, which allows for Parish Priest v. Rigor
an exception: i.e. if there are 3 other
competent witnesses. That exception - Father Rigor, the parish priest of Pulilan, Bulacan, died
should be read into this paragraph. leaving a will which was probated by the CFI. Named as
devisees in the will were the testator's nearest relatives,
5. Physician, surgeon, nurse, health officer or namely, his three sisters: Florencia Rigor-Escobar, Belina
druggist Rigor-Manaloto and Nestora Rigor-Quiambao. The testator
o Scope of Prohibition – the person must gave a devise to his cousin, Fortunato Gamalinda.
have taken care of the testator during the - It may be deduced that the testator intended to devise the
44 ha. Riceland owned by him to his nearest male relative
latter’s final illness. “Taking Care” means
who would become a priest, who was forbidden to sell the
medical attendance with some regularity or
ricelands, who would lose the devise if he discontinued his
continuity that the possibility of duress or studies for the priesthood, or having been ordained a priest,
influence exists. he was excommunicated, and who would be obligated to
o However, the pharmacist who only say annually twenty masses with prayers for the repose of
happens to fill a prescription does not fall the souls of the testator and his parents.
under the interdiction. - During the testate proceedings, the CFI approved the
project of partition and directed the administratrix to deliver
6. Individuals, associations and corporations not to the devisees their respective shares. Inasmuch as no
permitted by law nearest male relative of the testator claimed the devise and
as the administratrix and the legal heirs believed that the
• Bewildering variations in the rules – parish priest of Victoria had no right to administer the
Why do some paragraphs [pars ricelands, the same were not delivered to him. The latter,
2 and 4] disqualify relatives but another [par5] does however, petitioned for delivery of the ricelands to the
church.
not?
- The lower court, after first declaring the bequest
Why is the exception in par3 not inoperative, later reconsidered its findings in an order, on
applied to paragraphs 1 and 5? the ground that the testator had a grandnephew (born after
The reason is that the article is the testator's death), who was a seminarian, and directed
derived from various sources – from the Old Code, the administrator of the estate to deliver the ricelands to the
the Code of Civil Procedure and the ideas of the parish priest of Victoria as trustee.
Code Commission.
Did the testator contemplate only his nearest male relative at
the time of his death? Or did he have in mind any of his
nearest male relatives at anytime after his death?
Art. 1028. The prohibitions mentioned in article - The bequest refers to the testator's nearest male relative
739, concerning donations inter vivos shall living at the time of his death and not to any indefinite time
apply to testamentary provisions. thereafter. "In order to be capacitated to inherit, the heir,
devisee or legatee must be living at the moment the
• The Disqualification laid down by this article applies only succession opens, except in case of representation, when it
to TESTAMENTARY SUCCESSION is proper"
• By the provisions of this article, those are disqualified - The said testamentary provisions should be sensibly or
from receiving donations under Art739 are likewise reasonably construed. To construe them as referring to the
disqualified from receiving testamentary dispositions testator's nearest male relative at anytime after his death
would render the provisions difficult to apply and create
from the parties specified in that article.
uncertainty as to the disposition of his estate. That could
Art. 739. The following donations shall be void:
not have been his intention.
(1) Those made between persons who were guilty
- In 1935, when the testator died, his nearest legal heirs were
of adultery or concubinage at the time of the
his three sisters or second-degree relatives, Mrs. Escobar,
donation;
Mrs. Manaloto and Mrs. Quiambao. Obviously, when the
(2) Those made between persons found guilty of
testator specified his nearest male relative, he must have
the same criminal offense, in consideration
had in mind his nephew or a son of his sister, who would be
thereof;
his third-degree relative, or possibly a grandnephew. But
since he could not prognosticate the exact date of his death
or state with certitude what category of nearest male
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relative would be living at the time of his death, he could not to pass upon certain provisions of the will even before it is
specify that his nearest male relative would be his nephew probated.
or grandnephews (the sons of his nephew or niece) and so
he had to use the term "nearest male relative". Whether Sofia can validly claim the devise made in her favor.
- Inasmuch as the testator was not survived by any nephew - NO. The prohibition in Art. 739 of the NCC is against the
who became a priest, the unavoidable conclusion is that the making of a donation between person who are living in
bequest in question was ineffectual or inoperative. adultery or concubinage. It is the donation which becomes
Therefore, the administration of the ricelands by the parish void. The given cannot give even assuming that the
priest of Victoria, as envisaged in the will, was likewise recipient may receive.
inoperative. It should be understood that the parish priest of - In this case, the wordings of the Will invalidate the legacy
Victoria could become a trustee only when the testator's because the testator admitted he was disposing the
nephew living at the time of his death, who desired to properties to a person with whom he had been living in
become a priest, had not yet entered the seminary or, concubinage.
having been ordained a priest, he was excommunicated. - Art. 1028 of the NCC: The prohibitions mentioned in Art.
Those two contingencies did not arise, and could not have 739, concerning donations inter vivos shall apply to
arisen, in this case because no nephew of the testator testamentary provisions.
manifested any intention to enter the seminary or ever
became a priest.
- This case is covered by article 956, which provides that if
"the bequest for any reason should be inoperative, it shall
be merged into the estate, except in cases of substitution
and those in which the right of accretion exists"
- This case is also covered by article 960(2), which provides
that legal succession takes place when the will "does not
dispose of all that belongs to the testator."
- There being no substitution nor accretion as to the said
ricelands, the same should be distributed among the
testator's legal heirs. The effect is as if the testator had
made no disposition as to the said ricelands. Art. 1029. Should the testator dispose of the
- The Civil Code recognizes that a person may die partly whole or part of his property for prayers and
testate and partly intestate, or that there may be mixed pious works for the benefit of his soul, in
succession. The old rule as to the indivisibility of the
testator's will is no longer valid. Thus, if a conditional legacy general terms and without specifying its
does not take effect, there will be intestate succession as to application, the executor, with the court's
the property covered by the said legacy approval shall deliver one-half thereof or its
proceeds to the church or denomination to
which the testator may belong, to be used for
Resurrecion v. Javier such prayers and pious works, and the other
half to the State, for the purposes mentioned
in Article 1013.
Nepomuceno v. CA
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appointed by the testator for the purpose; in testator, should fail to report it to an
default of such person, by the executor, and officer of the law within a month, unless
should there be no executor, by the justice of the authorities have already taken
the peace, the mayor, and the municipal action; this prohibition shall not apply
treasurer, who shall decide by a majority of to cases wherein, according to law,
votes all questions that may arise. In all these there is no obligation to make an
cases, the approval of the Court of First accusation;
Instance shall be necessary. (5) Any person convicted of adultery or
The preceding paragraph shall apply concubinage with the spouse of the
when the testator has disposed of his testator;
property in favor of the poor of a definite (6) Any person who by fraud, violence,
locality. intimidation, or undue influence should
cause the testator to make a will or to
• The named beneficiaries here are the poor, either of a change one already made;
definite locality [par3] or of no designated locality [par1]. (7) Any person who by the same means
In the latter case, the beneficiaries shall be the poor of prevents another from making a will, or
the testator’s domicile, unless excluded by the testator in from revoking one already made, or who
his will.
supplants, conceals, or alters the
• Who are to determine the individual beneficiaries within
latter's will;
the class designated by the testator?
A. The person authorized by the testator or in his (8) Any person who falsifies or forges a
default, supposed will of the decedent.
B. The executor, or in his default,
C. The administrator. • This article applies to all kinds of succession
In fact, the committee specified
in this article will have no occasion to function.
• GROUNDS FOR UNWORTHINESS
Art. 1031. A testamentary provision in favor of a
1. Parents who have abandoned their children or
disqualified person, even though made under induced their daughters to lead a corrupt or
the guise of an onerous contract, or made immoral life, or attempted against their virtue
through an intermediary, shall be void. o There are 3 grounds given:
1) Abandonment of the child
• Rationale – What cannot be done by direction cannot be 2) Inducement of a daughter to
done by indirection. The simulation must be proved, for lead a corrupt or immoral life
this article to apply. 3) Attempt against a daughter’s
• Effect of simulation or circumvention – The article virtue
provides that the disposition is void, hence ineffective
both as to the intended beneficiary and the intermediary. o All these 3 grounds are also grounds for
The intestate heirs, to whom the property would go, have disinheritance of parents or ascendants under
the right to claim the nullity. Art920. The same rules apply.
2. Person convicted of an attempt against the life
of the testator, his or her spouse, descendants
Art. 1032. The following are incapable of or ascendants
succeeding by reason of unworthiness: o Also a ground for disinheritance under
(1) Parents who have abandoned their Art919. The same rules apply.
children or induced their daughters to
3. Person who accused the testator of a crime for
lead a corrupt or immoral life, or which the law prescribed imprisonment for 6
attempted against their virtue; years or more, if the accusation has been
(2) Any person who has been convicted of found to be groundless
an attempt against the life of the o Also a ground for disinheritance under
testator, his or her spouse, Art919. The same rules apply.
descendants, or ascendants;
(3) Any person who has accused the 4. Any heir of full age who, having knowledge of
the violent death of the testator, should fail to
testator of a crime for which the law report it to an officer of the law within a month,
prescribes imprisonment for six years unless the authorities have already taken
or more, if the accusation has been action
found groundless; o One requisite of this ground for
(4) Any heir of full age who, having disqualification makes this paragraph non-
knowledge of the violent death of the operative – a legal obligation to make an
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accusation. There is no such obligation under • Question – regarding the second mode, is it enough that
the present law. the offended party execute a will with knowledge of the
o However, the Requisites of this paragraph are existence of the cause of unworthiness?
– o Balane says that the better opinion is that it is
a) The heir has knowledge of NOT enough, the will must either institute the
the violent death of the decedent unworthy heir or restore him to capacity.
b) The heir is of legal age
c) The heir fails to report it to an
officer of the law within a month after
• Common Grounds for Unworthiness and
Disinheritance: Conflicting Modes of Lifting
learning of it
Disqualification [Articles 1033 and 922]
d) The authorities have not yet
A.Most of the grounds for unworthiness are also
taken action
grounds for disinheritance under Art1032.
e) There is a legal obligation for
the heir to make an accusation. There is no problem if the
offended party does not choose to disinherit
5. Person convicted of adultery or concubine age the offending heir, because then only the
with the spouse of the testator rules of unworthiness will operate.
o Also a ground for disinheritance under
Art919. The same rules apply.
Should the offended party,
however, elect to disinherit the offender, the 2
6. Any person who by fraud, violence, set of rules on disinheritance and
intimidation or undue influence should cause unworthiness would overlap.
the testator to make a will or to change one The problem then arises: HOW
already made IS THE DISQUALIFIED HEIR RESTORED
o Also a ground for disinheritance under TO CAPACITY?
Art919. The same rules apply. Under the rules on
7. Person who by the same means prevents disinheritance, a subsequent reconciliation is
another from making a will, or from revoking enough (Art922); under those on
one already made, or who supplants, unworthiness, either a written pardon or a
conceals, or alters the latter’s will subsequent will is required.
Supposing that there is a
8. Person who falsifies or forges a supposed will reconciliation but nothing in writing, will it be
of the decedent correct to conclude that the heir is restored to
capacity under the rule on disinheritance but
stays disqualified under the rule on
• EFFECT OF UNWORTHINESS
unworthiness?
Unworthiness gives rise to total
disqualification, i.e. the unworthy heir is
incapacitated to succeed from the offended party by
ANY FORM OF SUCCESSION.
Thus, unworthiness and Balane says this seems
disinheritance have identical effects. Unworthiness unacceptable because that would make the
is disinheritance imposed by law. rules on unworthiness [which is by operation
That unworthiness deprives the of law and is only the implied will of the
unworthy heir even of the legitime is clear from offended party] prevail over those on
Article 1035. disinheritance [which is his express will]
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is subject to a suspensive condition. Upon the 1. These authorized individuals can only accept,
happening of the condition, the property passes to not reject the grant.
the heir but with retroactive effect. This is the 2. The persons selected as qualified recipients
same principle enunciated in conditional are, for their own part, free to accept or
obligations [Art1187]. Similarly, if the condition renounce the benefit.
does not happen, the property goes to the
appropriate successor, with the same retroactive
effect. Art. 1045. The lawful representatives of
corporations, associations, institutions and
• However, for conditional institutions, the provisions of
entities qualified to acquire property may
Art880 should be complied with, to wit, the property
should be placed under administration during the interim. accept any inheritance left to the latter, but in
order to repudiate it, the approval of the court
shall be necessary.
Art. 1043. No person may accept or repudiate an
inheritance unless he is certain of the death Art. 1046. Public official establishments can
of the person from whom he is to inherit, and neither accept nor repudiate an inheritance
of his right to the inheritance. without the approval of the government.
• Acceptance or renunciation must be made knowingly. • These provisions lay down rules similar to those
Unless the successor has knowledge of the two things concerning acceptance or renunciation on behalf of
mentioned in this article, his acceptance or renunciation minors and incompetents. The legal representatives may
is not effective. accept or renounce the testamentary grant on behalf of
the entity represented, but for renunciation, court
approval is, additionally required.
Art. 1044. Any person having the free disposal of
his property may accept or repudiate an Art. 1047. A married woman of age may repudiate
inheritance. an inheritance without the consent of her
Any inheritance left to minors or husband.
incapacitated persons may be accepted by
their parents or guardians. Parents or • Acceptance or renunciation by a Married person
guardians may repudiate the inheritance left There is no suggestion in this
to their wards only by judicial authorization. article that a married man of age does not have the
The right to accept an inheritance left to capacity to renounce without his wife’s consent.
the poor shall belong to the persons The rule is more accurately
designated by the testator to determine the worded as follows – A married person of age and
beneficiaries and distribute the property, or in not incapacitated for any reason may accept or
their default, to those mentioned in Article renounce an inheritance without his or her spouse’s
1030. consent.
Note that:
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• Thus, a deaf-mute who can read and write has This is an act of ownership, which necessarily
contractual capacity, and can accept or renounce on his implies that the heir has accepted the inheritance.
own behalf. B. Par2 – Gratuitous renunciation in favor of one or
some of his co-heirs. This is not in fact a
renunciation but a conveyance in favor of the co-
• However, an illiterate deaf-mute is incompetent and the heirs specified. It partakes of the nature of
rules on acceptance and renunciation through a donation and therefore must conform to the
representative apply. [Art1044] prescribed form of donations under Arts 748-749.
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there be any, shall in no case pertain to the decedent whose inheritance the predecessor of the heirs
renouncer, but shall be adjudicated to the was unable to accept or renounce?
persons to whom, in accordance with the
rules established in this Code, it may belong.
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WON the RTC Judge was in error in granting the motion and
converting the petition for issuance of letters of administration
Art. 1056. The acceptance or repudiation of an to an action for judicial partition.
inheritance, once made, is irrevocable, and - NO. When a person dies intestate, or if testate, failed to
cannot be impugned, except when it was name an executor in his will or the executor so named is
made through any of the causes that vitiate incompetent, or refuses the trust, or fails to furnish the bond
consent, or when an unknown will appears. required, the general rule is that the estate shall be
judicially administered and the court shall appoint a
qualified administrator.
• EXCEPTIONS TO THE RULE OF FINALITY OF - The exception to the above rule is found in Secs. 1 and 2 of
ACCEPTANCE OR RENUNCIATION Rule 74 , which does not require the appointment of an
A. Vitiated Consent – the factors are: administrator in cases of (1) extrajudicial settlement by
1. Violence agreement between the heirs, and (2) summary settlement
2. Intimidation of estates of small value.
3. Undue Influence - Sec. 1 of Rule 74 allows the heirs to divide the estate
4. Mistake among themselves without need of delay and risks of being
5. Fraud dissipated.
B. Appearance of an unknown will – this applies if - When a person dies without leaving pending obligations, his
the newly-discovered will is subsequent to any will heirs, are not required to submit the property for judicial
which may have formed the basis for the administration, nor apply for the appointment of an
acceptance or renouncement. The new will administrator by the court.
[assuming it is valid and admitted to probate]
reopens the whole affair and will call for a new
acceptance or renunciation. Nazareno v. CA
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does not bind the estate of Maximino Sr. in this case which • Rule 78 of the RoC governs the issuance of letters
also has a right to recover properties which were wrongfully testamentary and of administration and should be read
disposed. together with this article.
- 4. The TC and CA found that the Nazareno spouses
transferredtheir properties to their children by fictitious sales
in order to avoid the payment of inheritance taxes.
- 5. Any void contract may be questioned by any party SECTION 5. –
affected by it; hence, even if the estate of Maximino Sr. COLLATION
alone contests the validity of the sale, the outcome of the
suit will bind the estate of his wife as if no sale took place at
all. • THREE MEANINGS OF THE TERM “COLLATION” AS
- 6. It cannot be denied that the spouses intended to give the
USED IN THE FF ARTICLES:
6 lots to Natividad as the latter is the only female and
unmarried member of the family. Thus, since an implied 1. Collation as
trust was created, the lots are therefore subject to collation. COMPUTATION – [add]
- Every compulsory heir who succeeds with other compulsory o This is a
heirs must bring into the mass of the estate any property or simple accounting or arithmetical process,
right which he may have received from the decedent, or any
whereby the value of all donations inter
other gratuitous title, in order that it may be computed in the
vivos made by the decedent is added to his
determination of the legitime of each heir, and in the
account of the partition.
available assets in order to arrive at the
value of the net hereditary estate.
o Article 908
SECTION 4. –
2. Collation as
IMPUTATION – [subtract]
EXECUTORS AND ADMINISTRATORS
o This is the process by which donations
inter vivos made by the decedent are
correspondingly charged either to the
Art. 1058. All matters relating to the appointment, donee’s legitime or against the disposable
powers and duties of executors and portion.
administrators and concerning the o Articles 909 and 910
administration of estates of deceased
persons shall be governed by the Rules of 3. Collation as RETURN
Court. –
o This takes place when a donation inter
• With reference to Rules 78-90 of the Rules of Court. vivos is found to be inofficious [i.e. exceeds
the disposable portion] and so much of its
value as is inofficious is returned to the
Art. 1059. If the assets of the estate of a decedent decedent’s estate to satisfy the legitimes.
which can be applied to the payment of debts o Articles 909 and 910 also provide for this.
are not sufficient for that purpose, the
provisions of Articles 2239 to 2251 on
Preference of Credits shall be observed, Art. 1061. Every compulsory heir, who succeeds
provided that the expenses referred to in with other compulsory heirs, must bring into
Article 2244, No. 8, shall be those involved in the mass of the estate any property or right
the administration of the decedent's estate. which he may have received from the
decedent, during the lifetime of the latter, by
way of donation, or any other gratuitous title,
• In relation to Articles 2239-2251 and 2244 in order that it may be computed in the
determination of the legitime of each heir, and
in the account of the partition.
Art. 1060. A corporation or association authorized
to conduct the business of a trust company in • This article refers to the COMPUTATION of all donations
the Philippines may be appointed as an inter vivos made by the decedent, for the purpose of
executor, administrator, guardian of an determining the value of the net estate.
estate, or trustee, in like manner as an This is exactly the same thing
individual; but it shall not be appointed that is referred to in Art908 par2. The process is
guardian of the person of a ward. purely arithmetical, and is merely paper
computation.
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lived in the house and company of his o The question is why should the gift be
parents shall be deducted therefrom. reduced as inofficious just because it
exceeds 1/10 of the free portion?
• Collation in the sense of IMPUTATION o SO, Manresa interprets the article to
• This article states that as a general rule: mean that the gift will be imputed to the
free portion to the extent of 1/10 of the free
o The expenses incurred by the parents for the child’s portion. Beyond that value, the excess will
professional, vocational or other career [i.e. courses be imputable to the recipient’s legitime.
beyond the secondary level] are an exception to the
rule laid down in Art1062.
o Hence, these expenses, if not inofficious, although
Art. 1071. The same things donated are not to be
donations, should NOT be charged against the
recipient’s legitime but against the FREE PORTION, brought to collation and partition, but only
unless the parents provide otherwise. their value at the time of the donation, even
though their just value may not then have
• Contrary Provision by parents - been assessed.
o Should the parents provide otherwise, the child is Their subsequent increase or
entitled under this article to deduct from the said deterioration and even their total loss or
amount the sum corresponding to what his parents destruction, be it accidental or culpable, shall
would have spent on him had he stayed at home be for the benefit or account and risk of the
and loafed. donee.
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or of paying the increase in value - Alberta Zaragoza Morgan, the youngest of the siblings, filed
which the thing may have acquired by an action for the delivery of her inheritance shares namely
reason thereof. Lots 943 and 871.
- According to Alberta, their father already partitioned his
c. Ornamental expenses – NO estate while he was still living and was able to convey these
parcels of land to his three children through Deeds of Sale
reimbursement demandable, but the right
although, the contracts were made without consideration.
to removal is granted if no injury to the - Unfortunately, Alberta's share could not yet be conveyed to
estate will be cause. This is in relation to her because her marriage with an American, converting to
Article 548: her to an American citizen, disqualified her to own lands, the
Art. 548. Expenses for pure luxury or only exception being those acquired through succession.
mere pleasure shall not be refunded Alberta now contends that it was the intention to give to her
to the possessor in good faith; but Lots 943 and 871 in accordance with the partition earlier
he may remove the ornaments with executed Florentino Zaragoza and his spouse, as the
which he has embellished the respondents, denied that there was any partitioning of the
principal thing if it suffers no injury estate of Flavio during his lifetime.
thereby, and if his successor in the - In fact, Lot 871 is still in the name of Flavio and that Lot 973
possession does not prefer to refund has already been sold to Florentino by the decedent for a
the amount expended. valuable consideration.
- The RTC ruled that Flavio partitioned his properties during
2. If the thing has to be returned only in PART his lifetime and that there is an intention to convey Lot 871
because the donation is only partially inofficious to Alberta.
a. Necessary and useful expenses – the - However, there is a valid title over Lot 943 and the
reimbursement is also partial, in complaint in respect thereof should be dismissed.
proportion to the value to be returned.
b. Ornamental expenses – the same rule as Whether or not a Partition inter vivos is valid
in total return, unless the property is - The SC is convinced by the documentary and testimonial
physically divided and the ornament evidence thus presented that indeed a partition over the
happens to be located in the portion estate of Flavio Zaragoza was executed during the latter's
assigned to the donee, in which case he lifetime. It is in this partition that Alberta anchors her claim
will have all the rights of ownership. for the disputed lots as in fact, it was admitted by the
respondents that Lots 943 and 871 were supposedly the
inheritance shares of youngest sibling.
• Confusion in terminology – the situation treated in this - As to the validity of this partition, the SC held a partition
article is really a case of reduction of inofficious inter vivos is valid although the same should not encroach
donations and the rules set forth in this article really upon the legitimes.
belong in the provisions on inofficious donations in - As provided for in Art 1061, collation must be resorted to in
Articles 910, 910 and 911. The confusion would have order to determine whether what has been received from
been avoided if the Code had not insisted on using the the decedent, during the lifetime of the latter by way of
term collation so variedly. donation or any gratuitous title, has impaired the legitime.
- Unfortunately, in this case, collation can not be done as not
all the indispensable parties are impleaded in the case.
Hence, The SC held that the petition must therefore be
Art. 1077. Should any question arise among the dismissed without prejudice to the institution of a new
co-heirs upon the obligation to bring to proceeding where all the indispensable parties are present
collation or as to the things which are subject for the rightful determination of their respective legitimes.
to collation, the distribution of the estate shall
not be interrupted for this reason, provided Whether or not the validity of the Deed of Sale over Lot 943
can be resolved in an action for delivery of share
adequate security is given.
- The validity of the Deed of Sale could not be collaterally
attacked in this petition pursuant to the provisions of PD
• The division and distribution of the estate can be made 1529.
partially, should there be controversy as to the inclusion - The SC held that the certificate of title, in the absence of
of certain items in the computation of the estate’s value fraud, is the evidence of title real interest of the owner. Once
or the imputation of the heirs’ shares. registered, the same could not be modified or altered except
• The distribution can proceed on the items that are not in limited circumstances, except in some proceeding
controverted. allowed by law.
- Art 1061
- Collation must be resorted to in order to determine whether
what has been received from the decedent, during the
CASES FOR ARTICLES 1058-1077 lifetime of the latter by way of donation or any gratuitous
title, has impaired the legitime.
Zaragoza v. CA
- Flavio Zaragoza died intestate leaving four children: Gloria, Adan v. Casili
Zacariaz, Florentino and Alberta.
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- Felix Adan brought an action for the judicial partition SUBSECTION 1. - Partition
against his sister Victoria and the latter’s husband of four
(4) parcels of land left by their deceased mother.
• The immediate effect of the decedent’s death is the
- In opposition to the judicial partition, the defendants averred
vesting of the successional rights of the successors,
that said lots were ceded by their mother to Victoria as her
because the rights to the succession are transmitted
share of the inheritance; and that the Felix has received
more than his share consisting of money, expenses in his from the moment of the death of the decedent.
professional study of surveying, livestock, palay, and real • What the successors acquire vested rights over is the net
property. estate and the net estate is what remains after all the
- The lower court found that the donation of the parcels of unpaid debts of the decedent are paid, and the value of
land to Victoria were unsubstantiated by any written all the donations inter vivos is added. Thus, debts first
document but that Felix had indeed received various sums have to be paid; it is possible, if the debts exceed the
during the lifetime of their mother in palay, livestock and assets, that after the debts are paid, there will be no
expenses for his education amounting to around P3000, estate to speak of.
more than the value of the lots in dispute, thus absolving • If however the decedent’s gross assets exceed his
Victoria and her husband. liabilities, or if there are inofficious donations to be
returned, his net estate passes to his successors [heirs,
Whether or not Felix is entitled to any share in the four (4) legatees, devisees] at the precise moment of death.
parcels of land left by their mother in the possession of
• The estate however, is a mass of properties, usually
Victoria.
- NO.
consisting of various items. The immediate effect
- See Articles 1041 and 1042 in the next column. therefore, of the decedent’s death as far as successional
- Since the career of surveyor is a professional one, and rights are concerned, is a CO-OWNERSHIP of the heirs
since the expenses incurred by plaintiff's mother in giving over the entire mass. The legatees and devisees will
him that career encroached upon the legitime, it is proper to acquire a right to the specific items given to them,
collate one-half of the amount spent by her for him during assuming the legacies and devises are not inofficious.
the two years he studied surveying, the other half being • The actual partition of the estate among the heirs
considered as the amount which the plaintiff would have terminating the co-ownership can be done basically
spent if he had lived in the house and company of his through 2 methods:
mother. 1. Extrajudicial
- Thus, of the P1,000 spent on Felix’s education, P500 is agreement among the heirs, or
chargeable against his legitime, to be included in the value 2. Judicial proceedings
of the 12 carabaos, 300 cavans of palay, and cash of
P1,100 taken by Felix from his mother’s trunk. • The sequence may be outlines as:
- The value of the four (4) parcels of land in the possession 1. Upon decedent’s death – co-ownership of heirs
of Victoria, less the funeral expenses, is less than the total
over net hereditary or partible estate
amount received by Felix, thus he is no longer entitled to
2. Subsequent Partition
the said lots.
- Compensation operates as to the fruits received by Victoria a. By extrajudicial agreement under Rule 74
and her husband from the said lots as against the fruits or Sec1 of the ROC
interests received by Felix from the money and property he b. Through judicial order in appropriate
had received. proceedings under Rule 90 RoC
- Under the article 1041 of the Civil Code, allowances for
support, education, attendance in illnesses, even though • Actually, the judicial proceeding in which the partition is
unusually expensive, apprenticeship, ordinary equipment, ordered comprises the entire settlement of the estate of
or customary presents are not subject to collation. the decedent, covered by Rules 73-90 of the RoC
- But article 1042 of the same Code provides that expenses • In this part of successional law, i.e. the partition of the
which may have been incurred by the parents in giving their estate, substantive law and procedural law intersect.
children a professional or artistic career shall not be
brought to collation unless the parent so orders or they
encroach upon the legitimate.
- It also provides that in cases in which it is proper to collate Art. 1078. Where there are two or more heirs, the
them, the money which the child would have spent if it had whole estate of the decedent is, before its
lived in the house and company of its parents shall be partition, owned in common by such heirs,
deducted therefrom. subject to the payment of debts of the
deceased.
Dizon Rivera v. Dizon
Art. 1079. Partition, in general, is the separation,
division and assignment of a thing held in
SECTION 6. – common among those to whom it may
PARTITION AND DISTRIBUTION OF belong. The thing itself may be divided, or its
THE ESTATE value.
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• Partition ends the co-ownership among the co-heirs as to held that even an oral partition is valid.
the thing partitioned. [Chavez v. IAC]
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Article 1088 applies where the co-ownership covers the Art. 1092. After the partition has been made, the
mass of the hereditary estate. But the distinction is co-heirs shall be reciprocally bound to
academic and the rule is the same. warrant the title to, and the quality of, each
Art. 1620. A co-owner of a thing may exercise the
right of redemption in case the shares of all the
property adjudicated.
other co-owners or of any of them, are sold to a
third person. If the price of the alienation is • OBLIGATION OF MUTUAL WARRANTY
grossly excessive, the redemptioner shall pay Partition among co-heirs
only a reasonable one. imposes upon them the same mutual obligation of
Should two or more co-owners desire to warranties imposed among co-owners in general.
exercise the right of redemption, they may only
do so in proportion to the share they may
According to Art501: “Every co-
respectively have in the thing owned in
owner shall, after partition, be liable for defects of
common. title and quality of the portion assigned to each of
the other co-owners.”
• When more than one co-owner wish to redeem – implicit
in article 1088 and explicit in article 1620 is that in such
case, ALL the co-owners wishing to redeem may do so,
but in proportion to each one’s hereditary interest over
the mass.
• RULE ON WARRANTIES
The applicable rules on
Art. 1089. The titles of acquisition or ownership of warranties are found in Articles 1547-1580 in the title
each property shall be delivered to the co-heir on Sales, insofar as those articles are not
to whom said property has been adjudicated. inconsistent with the rules given in this subsection.
• This article only provides for the right over the document. • Insolvency of One of Obligors – should one of the co-
• The co-heirs however have the right to have the title heirs bound to make good the warranty be insolvent, his
divided into individual titles, a separate one for each of portion shall be borne proportionally by all, including the
the owners to correspond to the separate portions held one entitled to the warranty: Example -
by them respectively. Co-heirs are A, B, C, D and E in
equal shares of P60k each. B claims warranty for
the total amount of his share because he was
SUBSECTION 2. - Effects of Partition evicted.
A, C, D and E have to contribute
Art. 1091. A partition legally made confers upon P12k each to make good the warranty. Since there
each heir the exclusive ownership of the was eviction in the amount of P60k, the total value to
be partitioned was only P240k, hence P48k each.
property adjudicated to him.
Should A be insolvent, his P12k
share shall be borne by all the others, including B.
• The effect of partition is termination of co-ownership. Hence, C, D and E have to contribute P3k more,
making their individual liability P15k. B receives a
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total of P45k, having borne his own share of P3k caused by the fault of the distributee of
from A’s insolvency. the property.
• EXCEPTION to right to reimbursement from insolvent • This article enumerates the instances when there is
obligor: insolvency that is judicially declared, under the NO MUTUAL WARRANTY. It is not accurate to refer to it
Insolvency Law, since judicially declared insolvency as a cessation, since there was none to begin with.
extinguishes all obligations. These are –
1. Partition by the testator himself – save where the
legitime is impaired.
Art. 1094. An action to enforce the warranty 2. Agreement among the co-heirs to suppress the
warranty.
among heirs must be brought within ten years
3. Supervening events causing the loss or the
from the date the right of action accrues. diminution in value.
4. Fault of the co-heir
Art. 1095. If a credit should be assigned as 5. Waiver
collectible, the co-heirs shall not be liable for
the subsequent insolvency of the debtor of
the estate, but only for his insolvency at the
time the partition is made.
The warranty of the solvency of the
debtor can only be enforced during the five
years following the partition.
Co-heirs do not warrant bad debts, if so
known to, and accepted by, the distributee.
But if such debts are not assigned to a co-
heir, and should be collected, in whole or in SUBSECTION 3. - Rescission and Nullity
part, the amount collected shall be distributed of Partition
proportionately among the heirs.
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without the knowledge and approval of the • Prescriptive period of FOUR (4) YEARS – this is the
litigants or of competent judicial authority; same period laid down in the general rule of rescission of
(5) All other contracts specially declared by law to be contracts under article 1389.
subject to rescission.
• Paragraphs 1 and 2 are modified by the following article. Art. 1101. The heir who is sued shall have the
option of indemnifying the plaintiff for the
loss, or consenting to a new partition.
Art. 1098. A partition, judicial or extra-judicial, Indemnity may be made by payment in
may also be rescinded on account of lesion, cash or by the delivery of a thing of the same
when any one of the co-heirs received things kind and quality as that awarded to the
whose value is less, by at least one-fourth, plaintiff.
than the share to which he is entitled, If a new partition is made, it shall affect
considering the value of the things at the time neither those who have not been prejudiced
they were adjudicated. nor those have not received more than their
just share.
• LESION is economic injury, where the party receives
less than he is entitled to receive. Lesion is exceedingly
difficult to determine and evaluate and is viewed with • OBLIGOR’S OPTIONS – it is the co-heir who is sued for
increasing disfavor by modern civil law. rescission who has the option. He has 2 choices:
1. To have a Re-partition,
• Amount of Lesion or
The minimum extent of lesion 2. To indemnify the co-
for rescission to be available is ONE-FOURTH or heir the amount of the lesion suffered.
25%.
Note the slight variation from
paragraphs 1 and 2 of Art1381 which specifies
MORE than ¼. Evidently, in cases of partition of the
inheritance, Art1098 applies.
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bad faith or fraud on the part of the other a valid will disposing of said estate among his heirs; and if
persons interested; but the latter shall be this will be declared null and void, the partition made by the
testator in pursuance of its provisions is likewise null and
proportionately obliged to pay to the person void, for where these provisions cease to exist, the partition
omitted the share which belongs to him. made in conformity therewith also becomes null and void,
as the cessation of the cause implies the cessation of the
• This is NOT preterition under Art854. This is simply an effect.
omission of a compulsory heir in the partition, the - And since Sabina, Almadin's will is null and void for
lack of the legal requisites, consequently, the partition
assumption being something is left for him in the form of
which she made of her estate among her nieces the
an undisposed portion of the estate. The omitted heir
defendants-appellants herein, during her lifetime is likewise
simply gets his rightful share [Non v. CA] null and void.
• If the compulsory heir is one in the direct line and is - ART. 1056. If the testator should make a partition of
totally omitted from the inheritance, Art854 applies. his property by an act inter vivos, or by will, such partition
shall stand in so far as it does not prejudice the legitime of
the forced heirs.
- A testator may, by an act inter vivos, partition his
Art. 1105. A partition which includes a person property, but he must first make a will with all the formalities
believed to be an heir, but who is not, shall be provided for by law. And it could not be otherwise, for
void only with respect to such person. without a will there can be no testator; when the law,
therefore, speaks of the partition inter vivos made by a
• This is the reverse of the preceding article. Here an testator of his property, it necessarily refers to that property
outsider is mistakenly included in the partition. The which he has devised to his heirs.
obvious remedy is to recover the property from him and - A person who disposes of his property gratis inter
have it redistributed among the proper recipients. vivos is not called a testator, but a donor. In employing the
word "testator," the law evidently desired to distinguish
between one who freely donates his property in life and one
who disposes of it by will to take effect after his death.
Tuason v. Tuason
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the co-ownership, the life of the said partnership to end sale, its terms and its validity, and to quiet any doubt that
when the object of its creation shall have been attained. the alienation is not definitive. The law not having provided
- Art. 400: No co-owners shall be obliged to remain a party to for any alternative, the method of notifications remains
the community. Each may, at any time, demand the exclusive, though the Code does not prescribe any
partition of the thing held in common. particular form of written notice nor any distinctive method
- Nevertheless, an agreement to keep the thing undivided for for written notification of redemption.
a specified length of time, not exceeding ten years, shall be - In the absence of a written notification of the sale by the
valid. This period may be a new agreement. vendors, the 30-day period provided in Art. 1088 has not
even begun to run.
Garcia v. Calinisan
Balanay Jr. v. Martinez
- Gelacio Garcia died intestate, leaving a parcel of
unregistered land Iloilo.O - Leodegaria Julian, in her will, partitioned her paraphernal as
- n his death the property was inherited by his nephews, well as all the conjugal properties as if they were all owned
nieces, grandnephews who are the descendants of his late by her, disposing of her husband's one-half share.
brothers, Pedro, Simeon, Buenaventura and Marcos. - The will also provided that the properties should not be
- A group of heirs signed a document entitled “Extrajudicial divided during her husband's lifetime but should remain
Partition and Deed of Sale”. In the same document, the intact and that the legitimes should be paid in cash to be
heirs transferred the land to Spouses Calaliman. satisfied out of the fruits of the properties.
- The document was inscribed in the RD of Iloilo. - Felix Balanay, Jr. filed a petition for the approval of his
- 2 weeks after, another group of heirs sold to Spouses mother's will which was opposed by the husband and some
Calaliman their shares, rights, interest and participation in of her children.
the same parcel of land. The Deed of Sale was registered - During the pendency of the probate proceedings Felix
in the RD of Iloilo. submitted to the court a document showing his father's
- 5 months after, some of the heirs (petitioners herein) filed a conformity to the testamentary distribution, renouncing his
case for legal redemption of the ¾ of the land which was hereditary rights in favor of his children in deference to the
sold by their co-heirs to Spouses Calaliman. memory of his wife.
- The trial court ruled in favor of petitioners and ordering - The Court gave effect to the affidavit and conformity of the
defendants to resell the property. surviving spouse.
- However, the CA reversed the decision and ordered for the - Meanwhile, a certain Atty. David Montaña, Sr. allegedly, in
dismissal of the complaint. behalf of the petitioner, moved to dismiss the probate
- Hence, this petition. proceedings and requested authority to proceed by intestate
proceedings on the ground that the will was void (because
Whether petitioners exercised their right of redemption within Leodegaria cannot validly dispose of her husband’s share).
the period fixed by Art. 1088. - This motion was granted by the probate court and the
- YES. The SC reversed the decision of the CA and petition for the allowance of the will was dismissed.
reinstated the decision of the trial court. - Felix appealed the decision of the trial court declaring the
- No notification in writing was ever received by petitioners will void before resolving the question of its formal validity.
about the sale of the hereditary interest of some of their co-
heirs in the parcel of land they inherited from the late
Gelacio Garcia.
- Also, the SC held untenable the argument of respondents
that the requirement that the notice must be in writing is
deemed satisfied when petitioner Francisco Garcia went to
the Office of the Register of Deeds and saw for himself, Whether the probate court erred in passing upon the intrinsic
read and understood the contents of the deeds of sale. validity of the will, before ruling on its allowance or formal
- By citing another case, the Court did not consider the validity, and in declaring it void.
registration of the deed of sale with the Register of Deeds - NO. In view of certain unusual provisions of the will, which
sufficient notice, most specially because the property are of dubious legality, and because of the motion to
involved was unregistered land. withdraw the petition for probate (which the lower court
- Thus, the SC held that petitioners have not lost their right to assumed to have been filed with the petitioner's
redeem, for in the absence of a written notification of the authorization), the trial court acted correctly in passing upon
sale by the vendors, the 30-day period has not even begun the will's intrinsic validity even before its formal validity had
to run. been established.
- The SC also declared that petitioners can claim attorney's - The probate of a will might become an idle ceremony if on
fees for bad faith on the part of respondents, first, for its face it appears to be intrinsically void. Where practical
refusing redemption, and secondly for declaring the entire considerations demand that the intrinsic validity of the will
land as theirs, although they knew some heirs had not sold be passed upon, even before it is probated, the court should
their shares. meet the issue
- In the interpretation of a related provision (Article 1623 of
the New Civil Code) this Court had stressed that written Whether or not the testator validly prohibited the partition of her
notice is indispensable, actual knowledge of the sale properties until after the lifetime of her husband and
acquired in some other manners by the redemptioner, consequently ordered that the legitimes be paid in cash.
notwithstanding. He or she is still entitled to written notice, - This provision of the will is void. First, the prohibition to
as exacted by the Code, to remove all uncertainty as to the partition the estate is only valid for twenty years. Hence, the
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Alejandro v. CA
Garcia v. Calaiman
Verdad v. CA
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testamentary succession, it repudiates the inheritance shall more persons are called to the
shall be necessary: always accrue to his co-heirs. same inheritance, devise or
(1) That two or more persons legacy, the part assigned to the
be called to the same Art. 968. If there are several one who renounces or cannot
inheritance, or to the same relatives of the same degree, receive his share, or who died
portion thereof, pro and one or some of them are before the testator, is added or
indiviso; and unwilling or incapacitated to incorporated to that of his co-
(2) That one of the persons succeed, his portion shall heirs, co-devisees, or co-
thus called die before the accrue to the others of the legatees.
testator, or renounce the same degree, save the right of
inheritance, or be representation when it should Art. 1019. The heirs to whom the
incapacitated to receive it. take place. portion goes by the right of
accretion take it in the same
Art. 1022. In testamentary proportion that they inherit.
succession, when the right of
accretion does not take place, Art. 1021. Among the compulsory
the vacant portion of the heirs the right of accretion shall
instituted heirs, if no substitute take place only when the free
has been designated, shall portion is left to two or more of
pass to the legal heirs of the them, or to any one of them and
testator, who shall receive it to a stranger.
with the same charges and Should the part repudiated
obligations. be the legitime, the other co-
heirs shall succeed to it in their
own right, and not by the right of
accretion.
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.
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
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