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Part 1: PART I. Baste reviewer - Google Docs
Jao 385-393

Jappy 393 (Art 862)- DONE

402

Andrew 402 (4.) - 412

Yap 413-421 DONE

Erica 422 - 429 DONE

Chelly 430 - 438

Lyca 438
(constitution) -
445

STARTS at PAGE ___ of this reviewer

https://drive.google.com/drive/folders/1Uh51EdomI4sTF
xHSnPFSbae2DRsCkRyz?usp=sharing -
^Nandito lahat ng resources, hanapin niyo nalang yung
pertinent

FOR CROSS REFERENCE and ADD:

1. ARROWHEAD
*https://drive.google.com/file/d/1sYVo_H6dyjRr
tVdpzUNk9jMDUL0E9g5-/view?usp=sharing

2. baste’s notes last sem (pa-indicate na “baste

notes”)
*https://drive.google.com/drive/folders/1rK3DT
HnMD0-4X8e1SxVkix_-Nj90f1oi?usp=sharing

3. sebastian reviewers.
*https://drive.google.com/file/d/1BRChxrPhdWj
EF9nlGKwngDO0dqXvtDTJ/view?usp=sharing

4. Baste’s book -
*yung mga important comments/observations niya
+ short digest nung mga cases: Facts, Issue Ruling

ALWAYS CROSS REFERENCE WITH BOOK para di na

natin need basahin yung book kasi na cross reference na sa
book of DEATH. Follow the flow and headings of the book.

Try to find a good digest or digest your self yung cases para
pogi/maganda ka

Yap is the way


Article 857.
Substitution is the appointment of another heir so that he
may enter into the inheritance in default of the heir
originally instituted.
Vacancy in the Inheritance
● The testator’s intention in executing a will is “to
control to a certain degree the disposition of his
estate to take effect after his death”
○ This will be accomplished through:
■ Instituting the heroes and
specifying their respective
interests of the inheritance
■ Naming specific persons and
respectively allotting to each of
them specific real or personal
property.
● However, there is no assurance that upon the death
of the testator that his wishes shall be implemented
despite everything that is necessary to accomplish
his objective.
● 3 contingencies affecting the heir, legatee or
devisee which can obstruct the implementation of
the testator’s testamentary dispositions (RIP)
○ Repudiation
○ Incapacity
○ Predecease
● If any of the contingencies should occur, there shall
be a vacancy in the inheritance even if the testator
faithfully complied with all legal requirements in
the execution of the will.
● A vacancy in the inheritance may result in the
distribution of the vacant portion by intestacy.
○ 3 intermediate remedies to prevent
intestacy from setting in:
■ Substitution of heirs
■ Right of representation
■ Right of accretion
Deficiency of Definition
● The definition does not cover a fideicommissary
substitution wherein substitution takes place even if
the heir originally instituted/legatee/devisee is not
in default.
○ In fideicommissary substitution, the
testator institutes two heirs
simultaneously, but the beneficial use,
enjoyment and possession of inheritance
are granted to the heirs successively.
■ The substitution stakes place
when the right of the first heir to
the inheritance expires
Objectives of substitution
● It is to prevent the distribution of the vacant portion
of the inheritance by intestacy (except in the case
of fideicommissary substitution.
● Substitution gives the testator greater flexibility
and freedom in disposing his estate by allowing the
testator to designate a substitute heir in case the
instituted heir defaults.
● And it prevents the estate or any part thereof from
coming into the hands of individuals who may be
unwanted by the testator.
Article 858.
Substitution of heirs may be:
1. Simple or common;
2. Brief or compendious;
3. Reciprocal; or
4. Fideicommissary.
● The law states four types of substitution but in
ultimate analysis there are only two: simple and
fideicommissary.
○ Brief, Compendious and Reciprocal are
considered mere variants of simple.
● In simple substitution, the substitute takes the
place of the instituted heir who defaults (i.e RIP).
● Brief if there are two or more substitutes for one
instituted heir. (Art 860)
● Compendious when one substitute is appointed
for two or more instituted heirs. (Art 860)
● Reciprocal is when two or more heirs are
instituted and each of them is a substitute for the
others in case of default. (Art 861)
● Fideicommissary Substitution (Art 863)
Article 859.
The testator may designate one or more persons to
substitute the heir or heirs instituted in case such heir or
heirs should die before him, or should not wish, or should
be incapacitated to accept the inheritance.
A simple substitution, without a statement of the cases to
which it refers, shall comprise the three mentioned in the
preceding paragraph, unless the testator has otherwise
provided
Simple Substitution
Simple Substitution is the appointment of one or more
substitutes to one or more instituted heirs.
Grounds for Substitution (RIP)
1. Repudiated the inheritance
2. Is incapacitated to inherit from the testator or
3. Heir, legatee or devisee predeceased the testator
NOTE:
● A substitution couched in general terms without
specifying the cause shall include all three
contingencies (RIP).
○ However, if the testator specifies what
contingency should be complied, then it
should be strictly followed.
Example:
● Testator gave A P10,000 with B as substitute. If A
RIP, then B will substitute since it is couched in
general terms.
 ○ However if testator expressly state that
‘..if A repudiates’, then only repudiation
will give effect to the substitution of B.
Example in the book
Testator with an estate of P180k gave P100k to his son A,
sole compulsory heir.
● The testator gave the balance of of P80k to his
cousin B with C as substituted.
○ B has 2 legitimate children
■ D and E;
○ C has 2 legitimate children
■ F and G
● B dies on July 21
● Testator died on July 22
● C died on July 23
Estate distribution:
A P100k of which 90k is legitime
B Nothing, because he predeceased the testator
C P80k, bc he substituted B. Notes that C survived
the testator. That C died the day after the
testator is irrelevant. He already inherited it
from the testator.
D&E Nothing from the testator because a VH (B in
this case) who predeceased the testator nothing
to his own heirs
F&G Nothing directly from the testator. However, the
P80k inherited by C from the testator as
substitute for B shall pass to F and G as CH of
C clearly appears that the intention of the testator was
Note: if the testator stipulated that C would substitute B in
case of B’s repudiation, then the substitution would not take
place. The vacant portion allotted to B would pass to A by
intestacy
Article 860.
Two or more persons may be substituted for one; and one
person for two or more heirs.
Brief and Compendious Substitution
● In brief substitution, 2 or more substitutes take the
place of one instituted heir, legatee or devisee.
○ The substitutes share the inheritance
equally except if the testator specified a
different basis for sharing.
○ Example: Testator gave A P10,000 with
B and C as substitutes.
■ If A PIR, then B and C will
substitute and will get equal
share: P5,000 each.
■ However, if testator provided a
ratio, ‘..with 4:6 sharing’ then it
should be followed and give B
P4,000 and C P6,000.
● In Compendious substitution, one substitute takes
the place of 2 or more instituted heirs.
○ Example: Testator left a P10,000 bank
account to A and B in a 4:6 share with C
as substitute.
■ A predeceased the testator.
■ At the time the testator’s death,
A’s share of P4,000 shall pass to
C by compendious substitution.
Substitution takes precedence over the right of accretion.
● This is because substitution is a positive directive
of the testator in respect of the disposition of a
vacant portion of the inheritance.
● Accretion, on the other hand, vests title to the
vacant portion of the inheritance to co-heirs, co-
legatees and co-devicees by operation of law.
○ Accordingly, in filling the vacancy in the
inheritance, the directive of the testator
takes precedence over a remedial measure
provided by law.
● Conceivable is a variation of simple substitution.
○ A testator may institute 2 or more heirs,
legatees or devicees, subject to the
substitution of 2 or more persons.
● Example: Testator left a P10,000 bank account to
A and B in a 4:6 share with C and D in a 4:6
sharing as substitute. A predeceased the testator.
○ At the time, the testator’s death, A’s share
of P4,000 shall pass to C and D in their
proportionate share of 4:6 or 1,600 and
2,400 by conceivable substitution.
Article 861.
If heirs instituted in unequal shares should be reciprocally
substituted, the substitute shall acquire the share of the
heir who dies, renounces, or is incapacitated, unless it
otherwise. If there are more than one substitute, they shall
have the same share in the substitution as in the
institution.
Reciprocal Substitution
● Reciprocal substitution is a bilateral substitution of
2 or more heirs, legatees or devisees in the event of
RIP.
● Example: Testator gave A a car and B a parcel of
land subject to reciprocal substitution.
○ If A RIP, then B is entitled to the car.
○ It follows that if it is B that RIP, then A is
entitled to the parcel of land.
] Fideicommissary substitution is not a real case of
Jappy Part
Article 862.
The substitute shall be subject to the same charges and
conditions imposed upon the instituted heir, unless and
testator has expressly provided the contrary, or the
charges or conditions are personally applicable only to
the heir instituted. (780)
Applicability of Conditions to the Substitute
Substitution is similar to subrogation. The Substitute is
subject to the same charges and conditions imposed by the
testator on the instituted heir except:
1. If the testator expressly so provided, or
2. If the charges or conditions are personal to the
instituted heir, or
3. If the charges or conditions cannot be fulfilled by
the substitute.
Example:
The testator instituted a Roman Catholic deacon as an heir
subject to the condition that within a year from the
execution of the will the deacon must be ordained as a
catholic priest. If the testator appointed a woman as
substitute, it is evidence that the condition must be
construed as personal to the instituted heir given that it
cannot be fulfilled by the substitute.
The condition of the institution shall be inapplicable to the
substitute if it is impossible for the substitute to comply with
the same. If the substitute is conditioned that he/she should
marry his/her sibling then the condition is impossible to be
legally complied with
Article 863.
A fideicommissary substitution by virtue of which the
fiduciary or first heir instituted is entrusted with the
obligation to preserve and to transmit to a second heir
the whole or part of the inheritance, shall be valid and
shall take effect, provided such substitution does not go
beyond one degree from the heir originally instituted,
and provided further, that the fiduciary or first heir and
the second heir are living at the time of the death of the
testator. (781a)
Nature of Fideicommissary
In successive institutions, a testator seeks to retain control of
his estate even after it has passed to his heirs. Under Art
777, inheritance passes to the heirs from the moment of the
testator’s death. Succession transfers ownership of the
inheritance to his heirs. Testator has nothing to control.
In successive institution, a testator determines not only the
identity of the person who shall receive the property upon
his demise. There is, however, residual control over the
property bequeathed.
substitution but a case of limited successive institutions
disguised as a substitution. (supporting provision: Art 869)
Requisites of a Fideicommissary substitution
1. Testator institutes a first heir or bequeaths to
a legatee or devisee (the fiduciary) a specific
property.
Fiduciary must be living at the time of the testator’s
death and must not suffer from any statutory
disqualifications. Succession confers title to fiduciary.
Fiduciary, thus, inherits property and acquires ownership
and not mere usufructuary.
“Article 869. A provision whereby the testator leaves to a
person the whole or part of the inheritance, and to another
the usufruct, shall be valid. If he gives the usufruct to
various persons, not simultaneously, but successively, the
provisions of article 863 shall apply.”
Art 869 grants testamentary usufruct. It is only when the
usufruct is granted successively to various beneficiaries that
Art 863 apply.
Neither is a fiduciary a trustee of the property bequeathed. A
trustee holds legal title to the entrusted property, he does not
have beneficial rights.
In Vda de Mapa vs CA, the court ruled that there is no
fideicommissary substitution because it was not made in an
express manner either by designating the substitution, or by
imposing upon the fiduciary the obligation to preserve and
to transmit the property to the fideicommissary. A
testamentary trust operates differently from a
fideicommissary substitution.
PAZ GARCIA Vda. de MAPA et.al. VS. COURT OF
APPEALS
G.R. No. L-38972, September 28, 1987
FACTS: On January 16, 1965, the petitoners Paz Garcia
Vda. de Mapa et. al. instituted a civil case before the Court
of First Instance of Manila to recover the properties left by
Concepcion Mapa de Hidrosollo from the estate of
Ludovico Hidrosollo which is also subject to a special
proceedings in the same court. They claimed that the
deceased Concepcion Mapa de Hidrosollo, in her last will
and testament, instituted Ludovico Hidrosollo as a universal
heir with the obligation as a trustee to the residue of her
estate and to hold the same in trust for the petitioners and
the private respondents.
The respondents, in their answer, denied the
existence of trust and alleged that Ludovico Hidrosollo, as
the surviving spouse of Concepcion Mapa de Hidrosllo,
became the latter's universal heir when she died without
ascendants or descendants, so that the controverted
properties became part of the estate of Ludovico Hidrosollo.
In disposing the case, the lower court ruled that a
trust was created. the Court of Appeals reversed the
decision of the lower court and ruled that there is no trust
nor fideicommissary substition created in the will of
Concepcion Mapa de Hidrosollo.
ISSUE: Whether or not a trust was created.
HELD: The Supreme Court ruled that there was a trust
created. Although the word "trust" itself does not appear in
the will, the testatrix intent to create one is nonetheless
demonstrated by the stipulations in her will.
In designating her husband Ludovico Hidrosollo as
a sole and universal heir with the obligation to deliver the
properties to the petitioners and private respondents, she
intended that the legal title should vest in him and in
significantly referring to petitioners and private respondents
as beneficiarios, she intended that the beneficial or equitable
interest over the properties should repose in them.
Article 1443 of the Civil Code also provides that
No particular words are required for the creation of an
express trust, it being sufficient that a trust is clearly
intended.
However, the trust created by Concepcion should
be limited only to the free portion of her estate.
Lastly, there can also be no fideicommissary in this case
because Article 863 requires that the substitution must not
go beyond one degree from the heir originally instituted.
The petitioner and private respondents are merely sobrinos
(newphews daw sabi sa google translate) of the fiduciary or
first heir.
2. The testator imposes upon the fiduciary the
duty (obligation) to preserve the inheritance and to
transmit the same in whole or in part to the second
heir (the fideicommissary).
Testator determines the date of transmission to the
fideicommissary, otherwise it shall take effect upon
death of the fiduciary.
The duty of the fiduciary to preserve the property and to
transmit the same to the fideicommissary has been the
object of much controversy insofar as it relates to the right,
power, or authority of the fiduciary to alienate the property
subject matter of the substitution.
Some authoritative writers =Power to dispose by the
fiduciary is in conflict with his obligation nto preserve the
thing and eventually transmit to the fideicommissary
substitute.
Some authoritative writers = Fiduciary acquires title to the
property and as such he possess the right and power to
dispose. That this power to dispose is not in conflict with
the fiduciary’s obligation to preserve the property. These
writers suggest that the disposition of the property by
the fiduciary is subject to the resolutory condition
created by the fideicommissary substitution.
- That upon the death of the fiduciary (transferor)
then the transferee’s right to the property
terminates because of the fideicommissary
substitute who shall now have title over the
disposed property.
- However, this assumes that (yung above bullet
example) the transferee was aware of the
limitations created by the fideicommissary
substitution. This is because the right of the
fideicommissary substitute to the property disposed
by the fiduciary may be defeated by an innocent
transferee for value
3. The substitution must not go beyond one
degree apart from the fiduciary.
The fiduciary and fideicommissary must be related to each
other within the first degree of consanguinity, which by
necessity restricts the substitution between a parent and a
child.
In Ramirez vs Ramirez, the court held that the phrase “one
degree apart” pertains to the blood relationship between the
fiduciary and the fideicommissary.
Ramirez v. Ramirez GR No. L-27952 15 feb 1982
FACTS: Jose Eugenio Ramirez, a Filipino national, died in
Spain with only his widow as compulsory heir. His will was
admitted to probate in Manila. The administratrix submitted
a project of partition as follows: the property of the deceased
is to be divided into two parts. One part shall go to the in
satisfaction of her legitime; the other part or "free portion"
shall go to Jorge and Roberto Ramirez. Furthermore, one
third (1/3) of the free portion is charged with the widow's
usufruct and the remaining two-third (2/3) with a usufruct in
favor of Wanda.
Jorge and Roberto opposed the project of partition on the
ground that the provisions for fideicommissary substitutions
are invalid because the first heirs are not related to the
second heirs or substitutes within the first degree.
ISSUE: Whether the proposed partition is in accordance
with law? -no-
RULING: It may be useful to recall that Substitution is the
appointment of another heir so that he may enter into the
inheritance in default of the heir originally instituted. As
regards the substitution in its fideicommissary aspect, the
appellants are correct in their claim that it is void for the
reason that the substitutes (Juan Pablo Jankowski and
Horace V. Ramirez) are not related to Wanda, the heir
originally instituted. Art. 863 of the Civil Code validates a
fideicommissary substitution "provided such substitution
does not go beyond one degree from the heir originally
instituted."
From this, it follows that the fideicommissary can only be
either a child or a parent of the first heir. These are the only
relatives who are one generation or degree from the
fiduciary. There is no absolute duty imposed on Wanda to
transmit the usufruct to the substitutes as required by Arts.
865 and 867 of the Civil Code. In fact, the appellee admits
"that the testator contradicts the establishment of a
fideicommissary substitution when he permits the properties
subject of the usufruct to be sold upon mutual agreement of
the usufructuaries and the naked owners.
 4. The Fiduciary and the Fideicommissary must be
living at the time of the death of the testator.
Capacity To Succeed is essential in order that an heir,
legatee or devisee may inherit from the testator.
● At the vesy least, fideicommissary be conceived at
the time of the testator’s death (Art 40). For a
testamentary gift is an economic benefit that a
conceived child is authorized to receive under the
law.
A fiduciary and fideicommissary inherit simultaneously
from the testator, the fideicommissary does not inherit from
the fiduciary
● The fideicommissary MUST POSSESS the
capacity to inherit from the testator, and it it not
necessary that he possess the capacity to inherit
from the fiduciary.
○ A fideicommissary who predeceased the
fiduciary but survived the testator inherits
from the testator.
○ The heirs of the fideicommissary shall
take his place when the fideicommissary
substitution occurs.
● Also, their respective rights to use, possession and
enjoyment of the property are successive.
● They are not co-owners even if both acquires title.
○ Fiduciary is granted the right to use,
possession and enjoyment of the property
to the exclusion of the fideicommissary.
● Moreover, fiduciary gets first dibs of the use,
possession and enjoyment (UPE) of the property
over the fideicommissary. However, the
fideicommissary gets ultimate advantage over
fiduciary if at the designated time of substitution or
upon demise of the fiduciary, fideicommissary
acquires absolute title to the property free and clear
of the substitution, to the exclusion of the fiduciary
and its heirs.
● If the Fiduciary predeceases, repudiates or is
incapacitated to inherit from the testator, the
fideocommissary shall nonetheless receieve the
property as an instituted heir.
● If Fideicommissary predeceases, repudiates, or is
incapacitated to inherit from the testator, the
fiduciary shall receive the inheritance free and clear
of the fideicommissary substitution.
5. The substitution must be made in an express
manner by naming the substitution as
fideicommissary,; or in alternative, the testator
must explicitly impose upon the fiduciary the
duty to preserve the inheritance and to transmit
the same to the fideicommissary
2 ways to constitute a fideicommissary substitution:
1. By naming the substitution fideicommissary and
2. By explicitly imposing upon the first heir the duty
to preserve the inheritance and to transmit the
same to the second heir
Mere request suggestion or advice of the testator to the
fiduciary to preserve and to transmit the property to the
fideicommissary is insufficient to constitute a
fideicommisary substitution
Crisologo vs. Singson
G.R No. L-13876
FACTS:
1. An action for partition was commenced by the Sps.
Consolacion Florentino and Francisco Crisologo
against Manuel Singson.
a. Complaint alleged that Singson owned ½
pro-indiviso share of the subject property
and that Consolacion Florentino owned
the other half by virtue of the will of Dona
Leona Singson.
2. The partition was approved. Defendants still
refused to vacate. They argue that Consolacion
Florentino was merely an usufructuary and not the
owner of the ½ pro indiviso of the property in
question and was not entitled to partition.
3. TC ruled in favor of consolacion and held that he
was a co-owner.
4. The will that Leona executed was in Spanish, but it
was contended that it had a provision regarding
substitution of fideicommissary. (Sustitucion
Fideocommisaria)
ISSUE: W/N there was fideicommissary substitution
HELD:
● SC held that the testator may not only designate the
heirs who will succeed him upon death, but also
provide for substitutes in the event that said heirs
do not accept or are in no position to accept the
inheritance or legacies or die ahead of him.
● The testator may also bequeath his properties to a
particular person with the obligation on the part of
the latter, to deliver the same to another person,
totally or partially, upon the occurrence of a
particular event.
● In this case, (see fact )

Yap’s Part (Art 871-874)
SECTION 4
Conditional Testamentary Dispositions
and Testamentary Dispositions With
a Term
Article 871.
The institution of an heir may be made conditionally,
or for a certain purpose or cause. (790a)
Institution of heirs
● a personal act by the testator by virtue of which he
designates the person or persons who are to inherit
his estate.
● The law grants the testator the right to institute an
heir for a certain purpose or cause .
● This is referred as modal institution.
Modal disposition
● may refer to the institution of an heir, or to a
legacy or devise, wherein the testator states:
○ (i) the object (or purpose) of the
institution, legacy or devise, or
○ (ii) the application of the property left to
the beneficiary, or
○ (iii) imposes a charge or burden on the
recipient of the property
***As you go through this art remember the difference
between the efficacy v. the demadability of a thing/right/etc
● Efficacy – refers to the effectiveness of the
testamentary disposition,
○ i.e., W/N the disposition shall take effect;
it is not the same as demandability
● Demandability – refers to the entitlement of the
beneficiary of a testamentary disposition to
demand the delivery of the property left to him; it
pertains only to an effective testamentary
disposition
Conditional Institution
------------------------------------------------------------------------
RECAP:
● Condition - an event that is uncertain to happen in
the future which will either trigger the efficacy of a
testamentary disposition or its termination. (Chck
Art 1181 for full def.)
TYPES:
● Suspensive condition – an event that is uncertain to
happen in the future, the happening of which will
make a testamentary disposition effective;
meantime the efficacy of the testamentary
disposition is put in a state of suspense, or
otherwise held in abeyance. If the suspensive
condition does not happen, or if it becomes certain
that it will not happen, the testamentary disposition
becomes ineffective.
● Resolutory condition – an event that is uncertain to
happen in the future, the happening of which will
terminate a testamentary disposition; meantime the
instituted heir, legatee, or devisee takes possession
of the property bequeathed to him.
● Potestative condition – fulfillment is dependent
completely on the will of the heir
● Casual condition – fulfillment is purely dependent
on chance or luck
● Mixed condition – fulfillment is partly dependent
on the will or the heir, and partly on chance or luck
or on the will of another person
● Positive condition – Requires the heir to do
something
● Negative condition – a condition that requires the
heir to refrain from doing something
● Term – an event that is certain to happen in the
future, although the exact time of happening may
not be known, which has an effect on the
demandability of a testamentary disposition
TYPES:
● Suspensive term – Event that is certain to happen
in the future (thus, it is a matter of time), but until
such event happens or until the arrival of that
period, the demandability of a testamentary
disposition is put in a state of suspense, or
otherwise held in abeyance
● Resolutory term – an event that is certain to
happen in the future (thus, it is a matter of time),
the happening of such event or the arrival of such
period terminates the testamentary disposition
-----------------------------------------------------------------------
Institution may be subject to a condition. A conditional
institution, legacy and devise has two important variants:
the suspensive and the resolutory.
1. Subject to a suspensive condition (SusCO)
- Legacy or devise is dependent on the
happening of a future and uncertain event.
 2. Institution subject to a resolutory condition
(ResOC)
- A future and uncertain event upon the
happening of which the institution, legacy
or devise is terminated.
- If the Resolutory Condition happens at
anytime after the death of the testator or
within the period specified by the testator,
the instituted heir loses the right to the
inheritance and must return the same to
the estate for proper disposition.
Requisites of Conditional Institution
1. Condition must be expressly stated in the will
● The express constitution of the condition mirrors
an essential feature of the parol evidence rule in
Section 3, Rule 130 of RoC. (term agreement
includes wills)
2. Condition must be clear
● Must be clear and understandable.
● In case of ambiguity, the rules of interpretation
(including, without limitation, those found in Arts
788, 789, 790, and 791) may be resorted to for the
purpose of ascertaining the true testamentary
intent.
○ If still ambiguous, condition shall be
considered as impossible and deemed not
imposed.
○ However, institution remains valid.
Applying the rule on accession by
analogy, the nullity of the condition (the
accessory) does not necessarily include
the nullity of the institution (the
principal).
3. Condition must be Lawful
● I.e. not contrary to law
Article 872.
The testator cannot impose any charge, condition, or
substitution whatsoever upon the legitimes prescribed
in this Code. Should he do so, the same shall be
considered as not imposed. (813a)
Exclusion of the Legitime
● Testator’s power to impose conditions on
testamentary disposition excludes the legitime.
(Also Art 904) CH must receive legitime free and
clear from any and all burdens, encumbrances,
conditions or substitutions of any kind whatsoever.
● A breach on this proscription does not void the
disposition but the condition is deemed not
imposed.
Article 873.
Impossible conditions and those contrary to law or
good customs shall be considered as not imposed and
shall in no manner prejudice the heir, even if the
testator should otherwise provide. (792a)
Impossible Conditions
These are:
● Physically impossible to fulfil
● Contrary to law, morals, public order or public
policy
● Particularly impossible to the beneficiary
Refer to both positive and suspensive (those that require the
performance of an affirmative act and which must be
accomplished prior to receiving the inheritance.) If negative
or resolutory, condition may be ignored.
Effect of an Impossible Condition
An impossible condition which is attached to a testamentary
disposition is deemed not imposed. I.e. the condition is
void but the disposition is valid.
● Thus, it will not prejudice the heir who, despite the
nonfulfillment, will receive the inheritance even if
the testator should provide otherwise.
Reason: Condition is merely an accessory to the
testamentary disposition; the cause of the disposition is the
generosity of the testator. If the impossibility of the
condition is known to the testator, then it is apparent that
the testator is making a mockery of the privilege to dispose
property by will.
Compared to Impossible Condition in an Obligation
Art. 1183. Impossible conditions, those contrary to
good customs or public policy and those
prohibited by law shall annul the obligation which
depends upon them. If the obligation is divisible,
that part thereof which is not affected by the
impossible or unlawful condition shall be valid.
The condition not to do an impossible thing shall
be considered as not having been agreed upon.
(1116a)

In ObliCon
to annul the obligation to
which the condition is
attached; nullity is not
confined to the condition
but also in the promise.
When the obligation is
nullified, neither party can
demand the fulfilment of
any obligation resulting
therefrom.
Reason:t The impossibility
of the condition indicates
the lack of interest of the
parties to be bound to the
performance of the
obligation.
In Succession
Similar to the effect of the
impossible condition to a
donation(Art 727).
Remember, testamentary
dispositions are gratuitous
transmissions of property.
Any deterrence will result
to setting aside that which
impedes the effectivity of
the disposition
Condition not to Marry
It is generally considered void to prohibit one to marry
because it violates a person’s right to choose his or her
status. Also, it tends to encourage cohabitation outside of
marriage
Condition Prohibiting a Subsequent Marriage
It may be permitted under the exception that the testator
imposed on his widow or widower by the ascendants or
descendants of the deceased spouse, shall be valid. (Note
non-impairment of legitime; i.e. sa DFP niya lang pwede
ibato to)
NOTE: A condition imposing marriage, surprisingly, is
valid.
Justification for the Prohibition

Time of Impossibility
● The condition must be impossible at any point in
time, whether at the time of the execution of the
will, or at the time of the death of the testator
There are conditions which are clearly impossible to fulfil
at any point in time. Such are obviously void and not
deemed imposed.
● However, there are conditions that are,:
○ 1. May be impossible at the time of the
execution of the will but become
impossible after the death of the testator,
or
○ 2. May be impossible at the time of the
execution of the will but become possible
after the death of the testator.
● The nullification of the impossible condition
depends upon the time of reckoning such
impossibility.
1. Family affection
2. The often tumultuous relationship between the
children of the first marriage and the step-parent,
or the children of the first marriage and the
children of the second marriage
3. To prevent the property that once belonged to the
deceased spouse from being enjoyed by, or worse,
from being transferred to, intentionally or
accidentally, the spouse of the second marriage.
Who may Impose the Prohibition
1. By Deceased spouse or by the ascendants of the
deceased spouse on the Surviving Spouse
2. By Descendants of the deceased spouse
Relative Prohibition to Marry
Generally valid because it does not totally deprive the heir/s
of his or her right to choose his or her status. Also, where
prohibition is relative to person, time, and place, it may be
valid provided the prohibition is not inordinately onerous.
Condition Imposing Marriage

A condition that imposes marriage to a specific person or to

Article 874.
An absolute condition not to contract a first or
subsequent marriage shall be considered as not
written unless such condition has been imposed on
the widow or widower by the deceased spouse, or by
the latter's ascendants or descendants.
Nevertheless, the right of usufruct, or an allowance or
some personal prestation may be devised or
bequeathed to any person for the time during which
he or she should remain unmarried or in widowhood.
(793a)
anyone in general is not explicitly prohibited , and generally
valid. Except if it falls under Art 873 on impossible
condition.
A relative prohibition to marry (e.g., relative as to time,
race, or religion), to the extent that it is not extremely
onerous as to virtually amount to an absolute prohibition to
marry, is valid.
Testamentary Gifts while Remaining Single or in a State
of Widowhood
It is valid. Thus, it is deemed as a testamentary gifts until
contracting marriage is deemed temporary gifts by the
testator to the single person or to a widow or widower.
Testamentary gift is in the nature of an institution subject to
a resolutory condition.
Erica’s part (422-429)
Article 875.
Any disposition made upon the condition that the heir
shall make some provision in his will in favor of the
testator or of any other person shall be void.
Dispocicion Captatoria (VOID)
Art. 875 refers to a testamentary disposition (dispocicion
captatoria).
- The testator makes a conditional
testamentary disposition in favor of an heir, a
legatee, or devisee.
- Condition: the heir, legatee or devisee shall
make some provision in his will in favor of
the testator or any other person designated by
the testator.
Dispocicion captatoria is VOID in its entirety, not just the
condition.
REASON:
1) It reduces the making of the will into a
contractual act whereby a testator in his will
gives something to an heir, legatee, or devisee
on the condition that in the (heir, legatee, or
devisee)’s will, he shall give the testator (or
his nominee) something in return.
- it militates against the very nature of succession
which is the gratuitous transmission, mortis
causa, of property from the decedent to the heir.
2) It enables a testator not only to control the
disposition of his own estate, but indirectly
also the estate of the heir upon whom the
prohibited condition is imposed.
3) It compels the heir to make a will in order to
comply with the condition of his institution.
- it violates the freedom of the heir not to make a
will.
- even if the heir executes a will and complies with
the condition of his institution, the heir is
implicitly prohibited from revoking the
testamentary disposition he made in favor of the
testator or the testator’s nominee.
- the condition of his institution is breached and he
loses his right as an instituted heir of the testator.
NOTE: Art. 828 – any restriction on the right of a
testator to revoke his will is VOID.
4) Compliance with the condition would be
uncertain until the will of the heir is admitted
to probate.
- meantime, the distribution of the estate of the
testator is hold in abeyance for an indefinite
period of time.
Agreements NOT constituting a Dispocicion Captatoria
- A separate agreement between a testator,
and an heir, legatee or devisee to effect that
the latter will make some provision in his will
in favor of the testator (or his nominee) is
NOT a DC.
REASON: the testamentary disposition is
unconditional. (separate agreement)
e.g. Donation inter vivos
examples:
1. (HOW/WHERE) In his will, a testator
unconditionally gave X a legacy of
P100k. In a separate agreement which is
not a part of the testator’s will, X, in
consideration of the legacy, promised to
the testator that he (legatee) would make
some testamentary provision in favor of
the testator’s son, Y.
- X’s undertaking to make a testamentary
disposition for Y is contained in a separate
agreement – thus, UNCONDITIONAL.
2. (OBJECT/WHAT) A testator in his will
gave X a legacy of P100k on the
condition that within a period of 6 months
from the testator’s death the legatee shall
give a donation inter vivos to the
testator’s son, Y in the amount not less
that P20k.
- While the legacy to X is conditional, the
condition does not require X to give a
testamentary benefit to Y. The condition – X
will give Y a donantion inter vivos.
Both of the examples, testator’s will has all the essential
elements of a contractual act. The reciprocity of the legacy
to X, and X’s counterpart makes the relationship between
the testator and X contractual in nature.
- It still circumvent the prohibition under Art.
875.
- “How should the legacy then be treated?” –
law is silent.
Baste’s answer: the legacy (in both examples) should be
nullified. It is undeniable that X’s undertakings are meant to
circumvent the statutory prohibition. That which cannot be
done directly should not be permitted to be done
directly.
Article 876. Any purely potestative condition imposed
upon an heir must be fulfilled by him as soon as he
learns of the testator's death.
This rule shall not apply when the condition, already
complied with, cannot be fulfilled again.
Testamentary Disposition with Positive, Potestative and
Suspensive Condition
The heir, legatee, devisee must personally fulfill the
condition as soon as he learns of the testator’s death.
Condition referred to in Art. 876 must be:
1. Potestative, where the fulfilment of the
condition is purely dependent on the will of
the heir, legatee or devisee.
2. Positive, where the condition requires the
heir, legatee, devisee to give or to give or to
do something
3. Suspensive, or until the fulfilment of the
condition, the heir, devisee, or legatee cannot
enter into the inheritance.
Example:
Testator gave his son X, a high school dropout, a legacy of
P1M, subject to the condition that X resumes his studies.
- Art. 876 requires that X re-enrolls in school
upon learning of the testator’s death.
Answer:
1. The condition is potestative in that re-
enrollment in high school is dependent on the
will of X. Because the condition requires X to
do something.
2. The condition is positive because it requires
X to do something.
3. The condition is Suspensive in that X cannot
enter into the inheritance until the condition is
fulfilled.
Consideration of ff circumstances:
(1) X may have known of his father’s death, but
he may not know that his father executed a
will. (he may not know that the will contains
conditional legacy in his favor) – thus,
immediate compliance with the condition
cannot be demanded.
(2) Possibility of re-enrollment. X’s delay in
complying with the conditions should not
disqualify him from receiving the legacy.
(3) X may have known the conditional legacy in
his favor. However, the efficacy of the legacy
is contingent upon the admission of his
father’s will to probate. – X cannot be
compelled to comply with the condition.
NOTE: Art. 876 is not intended to create a situation where
the legatee’s delay in complying with the conditions will
automatically disqualify him of which he is unaware, or
which without his fault or negligence he could not promptly
comply with. Neither to compel him with the condition even
before the will becomes effective.
Prior Compliance
The potestative condition must be fulfilled after succession
has opened.
GR: Fulfilment of the condition during the lifetime of the
testator is generally not considered compliance with the
condition.
Reason: while the testator is alive, there is no inheritance to
speak of, there is nothing to accept, there is no condition to
be fulfilled.
EXC: If the potestative condition has been fulfilled during
the testator’s lifetime and it cannot be fulfilled again, the
prior fulfillment is deemed sufficient to title the heir,
legatee, or devisee to receive the gift.
Article 877. If the condition is casual or mixed, it shall
be sufficient if it happen or be fulfilled at any time
before or after the death of the testator, unless he has
provided otherwise.
Should it have existed or should it have been fulfilled at
the time the will was executed and the testator was
unaware thereof, it shall be deemed as complied with.
If he had knowledge thereof, the condition shall be
considered fulfilled only when it is of such a nature that
it can no longer exist or be complied with again.
Testamentary Dispostition with Casual and Mixed
Conditions
Casual condition does not depend on the will of the heir,
legatee, or devisee but upon chance, luck, and/or upon the
will of a 3rdperson over whose will the heir, (d,l) has no
control.
- The casual or mixed condition must be
suspensive.
Mixed condition is a condition whose fulfillment is partly
dependent on the will, of the heir, (d,l) and partly upon
chance, luck, orupon the will of a 3rd person.
In both (casual and mixed) conditions the element of luck or
chance is prominent.
- The fulfillment of the condition, and
consequently the efficacy of the testamentary
disposition to which such condition is
attached, are wholly or partly dependent on
good fortune.
Time of fulfillment of the condition
A casual or mixed condition may be fulfilled at any time
BEFORE or AFTER the death of the testator.
Reason: fulfillment of the condition is not totally within the
control of the heir (d/l) but wholly or partly dependent upon
luck, chance or the will of a 3rd person.
Presumption of law: testator’s wish is to ensure that the
condition is fulfilled regardless of the time of fulfillment,
the testator indicates in no uncertain terms that he wants the
condition to be fulfilled again.
UNLESS, having known hat the condition has been fulfilled
prior to the execution of the will
A repeat fulfillment of the condition shall not be required if
by the very nature of the condition, it cannot be fulfilled
again.
Compared to the fulfillment of a Potestative Condition
Potestative Condition
GR: Potestative condition must be fulfilled after the
testator’s death because its fulfillment is a metter of
obedience to the express wishes of the testator.
- The fulfillment of the condition is totally
within the control of the heir (d/l).
EXC: where the potestative condition has been fulfilled and
cannot be fulfilled again, the fulfillment thereof prior to the
death of the testator is deemed sufficient.
Casual or mixed condition
GR: Casual or mixed condition must be fulfilled after the
testator’s death. Because its fulfillment is mainly a function
of luck, chance, or the will of another person.
EXC: time of fulfillment of the condition is irrelevant.
- Its fulfillment is not a matter of obedience to
the testator’s wishes.
Reason: it would be asking too much from an heir, (d/l) if
the testator, being fully aware of the prior fulfilment of the
condition, should require that luck revisits such heir (d/l).
Nonetheless, the law permits the testator to require a second
fulfillment of a causal or mixed condition, if such is indicted
in the will and second fulfillment is necessary.
Article 878. A disposition with a suspensive term does
not prevent the instituted heir from acquiring his rights
and transmitting them to his heirs even before the
arrival of the term.
Definition of a term
Term is a future and certain event upon which the
demandability of a testamentary disposition is made to
depend.
- It may be suspensive or resolutory.
Suspensive term
- Is a future and certain event which defers the
demandability of the testamentary disposition
until the term arrives.
Resolutory term
- Is a future and certain event the happening of
which terminates the efficacy of the
testamentary disposition.
Effect of suspensive term
- Upon the death of the testator, the heir
acquires ownership of the property allotted to
him by the testator.
- It does not delay the heir’s acquisition of
ownership of the inheritance. It merely defers
the demandability of the inheritance, but there
is no doubt that the heir shall, upon the arrival
of the term, be entitled to claim the same.
- If the heir dies before the arrival of the term,
he transmits the inheritance to his own heirs
who will inherit the property from him and not
from the testator.
Effect of resolutory term
- It entitles the heir to claim the inheritance as
soon as it becomes available. But when the
resolutory term arrives, the right of the heir to
the inheritance expires. The heir must
therefore return the inheritance to the estate of
the testator for proper disposition.
Illustrations
1) Testamentary disposition with a suspensive
term (institution ex die)
A testator gave to an infant by way of a devise a parcel of
land, which devise, under the terms of the will, becomes
effective at the time the devisee reaches the age of majority.
- Demandability of the devise is subject to a
suspensive term.
Answer: the infant upon the death of the testator, and even
before reaching the age of majority, acquires title to the
parcel of land and the infant can transmit the same to his
own heirs.
Here, the term merely suspends the demandability of the
devise.
- It occurs from the arrival of the day specified
in the testamentary disposition.
- Thus, if the devisee dies before the arrival of
the term, the parcel of land will be transmitted
to the heirs of the devisee, subject to the effect
of the suspensive term. (the heirs of the
devisee cannot demand the delivery of the
parcel of land until after the 18th birth
anniversary of the deceased devisee)
NOTE: the death of the devisee must occur after the death of
the testator. If the devisee predeceased the testator, he
acquired no right to the devise and has nothing to transmit to
his own heirs.
Rule: testator cannot appoint a devisee who shall receive the
parcel of land before the arrival of the term
Exception: if the testator complies with the provision of Art.
863 (fideicommissary substitution) – intestate succession
2) Testamentary disposition with a resolutory
term (institution in diem)
A testator gave to a devisee a parcel of land for a period of
ten years from and after the death of the testator.
- The devisee acquires title thereto from the
moment of death of the testator.
Answer: the devisee is entitled to claim the devise as and
when it becomes available.
However, given the effect of the resolutory term, the
devisee’s title to the parcel of land expires at the end of the
10 year period.
- Therefore, the security be in the form of a
registered mortgage on some real or personal
property, bank deposits, performance bond,
etc.
Under the Roman law: Security=caucion muciana.

- The devisee shall return the parcel of land to
the estate of the testator for proper disposition.
- The devisee may demand delivery of the
parcel of land upon completion of the
testamentary proceedings, but must return the
property to the estate of the testator upon the
lapse of the specified period.
Rule: testator cannot appoint a devisee who shall receive the
parcel of land after the lapse of 10 year period
Exception: if the testator complies with the provision of Art.
863 (fideicommissary substitution)
- Security must name either the substitute heir, if the
testator provided for substitution, or intestate heirs
of the testator as assured parties.
Reason: it is in favor of these persons that the legacy or
devise shall pertain in case of breach of the neg, potes
condition.
- IF the heir, (d/l) is UNABLE to post a security, the
property shall be put under administration during
lifetime of the heir, (d/l) or until the time when the
condition can no longer be breached.

- Administration will end if at some future time the

Article 879. If the potestative condition imposed upon heir, is able to post a security which is approved
the heir is negative, or consists in not doing or not by the probate court.
giving something, he shall comply by giving a security
that he will not do or give that which has been
prohibited by the testator, and that in case of
contravention he will return whatever he may have
received, together with its fruits and interests.

Negative Potestative condition

Negative Potestative condition

- Whose fulfillment is wholly dependent upon
the will of the heir (d/l)
- Is an imposition on the heir, (d/l) not to do
something or not to give something, both of
which are within the power of the heir, (d/l) to
comply with.
Effect of a Negative Potestative condition
- The heir (d/l) acquires title to the property
upon the death of the testator, subject to the
condition that he or she will not give or do
that which is prohibited.
- A breach of the prohibition results in the
extinguishment of the title to the property and
consequently the obligation to return it to the
estate of the testator for proper disposition.
- The obligation to return the property includes
the fruits thereof. (deemed not to have
acquired title to the property at all)

The Security

- Upon the breach of the condition, the law requires

that, as a pre-requisite to taking possession of the
property, the heir (d/l) must post a security to
ensure his compliance with his contingent
obligation to return the property.

NOTE: the law does not specify the type of security that
must be given.