Quiz No.

28 – (Succession – Institution of Heir to Legacies and Devises)

Article 840 to Article 959, NCC

I
T instituted A (his son), B, and C, to an estate of P300,000.00. How shall the estate be
divided? Why? (10%)

Answer: Paras, p. 207

A gets as legitime ½ of the estate or P150,000.00. The remaining P150,000.00 will be divided
equally among A, B, and C in accordance with Art. 846 which provides, “Heirs instituted
without designation of shares shall inherit in equal parts.” Thus, A gets a total of
P200,000.00; the P150,000 of which as legitime while the P50,000.00 as instituted heir. B
and C get P50,000.00 each as instituted heirs.

II
The testator instituted his heirs this way, “I institute as my heirs, A, B and the three children
of C to my estate of P450,000.00.” How much does each of the three children get? (10%)

Answer: Paras, p. 208-209

Art. 847 provides, “When the testator institutes some heirs individually and others
collectively as when he says, “I designate as my heirs A and B, and the children of C,” those
collectively designated shall be considered as individually instituted, unless it clearly appears
that the intention of the testator was otherwise.”

Each of the three children gets P90,000. Reason: Although collectively designated, they shall
be considered individually instituted (estate to be divided into five), unless it clearly appears
that the testator’s intention was otherwise.

III
T has two legitimate sons, A and B. In T’s will, he gave a friend a legacy of P60,000.00;
instituted A as heir; and deliberately omitted B. If the estate is P100,000.00, how should the
estate be distributed on T’s death? (10%)

Answer: Paras, p. 223

In view of the preterition, the institution of A is not valid, but the legacy is valid insofar as it
is not inofficious. The estate being P100,000.00, the free portion is only P50,000.00, hence,
the legacy of P60,000.00 should be reduced by P10,000.00, leaving the distribution as
follows:

A – P25,000.00;
B – P25,000.00; and
F – P50,000.00.

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IV
In his will, T prohibited H, heir, and all who may subsequently inherit from him, from
disposing of the property to be inherited for twenty (20) years from the time of his death. T
died in 1992; H, in 2002; and S, H’s son and heir, in 2007. S was succeeded by his son Z.
Will Z now legally dispose of the property? Why? (10%)
Answer: De Leon, p. 286

Yes.

Art. 870 provides, “The dispositions of the testator declaring all or part of the estate
inalienable for more than twenty years are void.”

Art. 863 provides, “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.”

When H died in 2002, S is still bound not to alienate the property for another 10 years. But in
2007 when S died, Z was no longer bound by the prohibition although only 15 years have
elapsed since Z is beyond one (1) degree from H, the heir originally instituted.

V
In her will, the wife provided as follows:

1. I hereby order that all real estate which may belong to me shall pass to my husband;
2. That my husband shall not leave my sisters after my death, and that he shall not marry
anyone; should my husband have children by anyone, he shall not convey any portion
of the property left by me, except the 1/3 part thereof and the 2/3 remaining shall be
and remain for my brother or his children should he have any;
3. After my death, I direct my husband to dwell in the camarin in which the bakery is
located, which is one of the properties belonging to me.
Questions:
a) If the husband marries again, will he forfeit the devise? (2%)
b) If the husband leaves the sisters of the wife, will he forfeit the devise? (2%)
c) If the husband does not live in the camarin, will he forfeit the devise? (2%)
d) If the husband has children by anyone, will he forfeit a part of the devise? (4%)

Answer: Paras, p. 264; Morente vs. De la Santa, 9 Phil. 387

The answer for (a), (b), and (c) is No. Reason: The happening of these events should not be
considered as the fulfillment of conditions which would annul or revoke the devise. They
were mere orders and there was no condition or statement that if he should not comply with
the wishes of the testatrix he would lose the devise given to him. The condition should have
been expressly provided. It was not.

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In this case, he would lose 2/3 of the devise. Reason: There was a statement that should he
have children by anyone, the forfeiture would take place. Here, the condition was expressly
provided.
VI
a) A inherits from his son B who died without issue property which was donated to the
latter by his brother C. Is A bound to reserve said property? If so, in whose favor?
(5%)
b) A sold the property mention in (a) to D, B’s sister. Is the sale valid? Explain your
answer? (5%)
Answer: Jurado, p. 489-491; 1963 Bar Exam

a) Yes. A is bound to reserve the property. Said property is clearly reservable under Article
891 of the Civil Code.

In order that there will be a reserve truncal under the abovementioned article, the following
requisites must concur: (1) The property should have been inherited by operation of law by
an ascendant (reservista) from his descendant (propositus) upon the death of the latter; (2) the
property should have been previously acquired by gratuitous title by the descendant
(propositus) from another ascendant or from a brother or sister; and (3) the descendant
(propositus) should have died without any legitimate issue in the direct descending line who
could inherit from him. All of these requisites are present in the instant case. Consequently, A
is now bound to reserve the property for the benefit of relatives of B who are within the third
degree and who belong to the line from which said property came.

We are, of course, aware of the view of Justice Paras that the origin of the property must be a
half-brother or half-sister, thus implying that the said property is not reservable within the
meaning of Article 891 of the Civil Code (3 Paras 232). It is respectfully submitted, however,
that the law does not make such distinction. As far as the origin of the property is concerned,
it speaks only of “another descendant, or a brother or sister.” Hence, even if the origin is a
brother or sister of the full blood, the property is still reservable although the question of line
becomes unimportant. This is the view of all Spanish commentators (See 6 Manresa, 7 th
Edition, p. 334). Hence, assuming that C in the above problem is B’s brother of the full
blood, and assuming further that all of A’s children (B, C, and D) die before him, and
subsequently, he himself dies, survived only by a paternal uncle and a maternal aunt, it is
clear that the subject property will then pass automatically and by operation of law to such
paternal uncle and maternal aunt of B pursuant to Art. 891 of the Civil Code. This conclusion
is in line with the declaration of the Supreme Court in Padura vs. Baldovino (104 Phil. 1065)
that the reservatarios or reservees do not inherit from the reservista, but from the descendant-
propositus, of whom the reservatarios are the heirs mortis causa, subject to the condition that
they must survive the reservista.

(b) The sale is valid. This is well-settled in this jurisdiction.

Since the ascendant-reservista actually acquires the reservable property upon the death of the
descendant-propositus subject to the resolutory condition that there must exist at the time of
his death relatives of the descendant who are within the third degree and who belong to the
line from which the property came, it is clear that all the attributes of the right of ownership,
such as enjoyment, disposal and recovery, belong to him exclusively, although conditional
and reservable. (See Edroso vs. Sablan, 25 Phil. 285). He can, therefore, alienate or encumber
the property if he so desires, but he will only alienate or encumber what he has and nothing
more because no one can give what does not belong to him. As a consequence, the acquirer

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will only receive a limited and revocable title. Therefore, after the death of the ascendant, the
reservatarios may then rescind the alienation or encumbrance because the condition to which
it is subject has already been fulfilled. (Edroso vs. Sablan, 25 Phil. 255; Lunson vs. Ortega,
46 Phil. 664).

VII
The spouses Peter and Paula had three (3) children. Paula later obtained a judgment of nullity
of marriage. Their absolute community of property having been dissolved, they delivered P1
million to each of their 3 children as their presumptive legitimes. Peter later re-married and
had two (2) children by his second wife Marie. Peter and Marie, having successfully engaged
in business, acquired real properties. Peter later died intestate. Who are Peter’s legal heirs and
how will his estate be divided among them? (10%)

SUGGESTED ANSWER: 2010 Bar Exam

The legal heirs of Peter are his children by the first and second marriages and his surviving
second wife. Their shares in the estate of Peter will depend, however, on the cause of the
nullity of the first marriage. If the nullity of the first marriage was psychological incapacity of
one or both spouses, the three children of that void marriage are legitimate and all of the legal
heirs shall share the estate of Peter in equal shares. If the judgment of nullity was for other
causes, the three children are illegitimate and the estate shall be distributed such that an
illegitimate child of the first marriage shall receive half of the share of a legitimate child of
the second marriage, and the second wife will inherit a share equal to that of a legitimate
child. In no case may the two legitimate children of the second marriage receive a share less
than one-half of the estate which is their legitime. When the estate is not sufficient to pay all
the legitimes of the compulsory heirs, the legitime of the spouse is preferred and the
illegitimate children suffer the reduction.
Computation:

(A) If the ground of nullity is psychological incapacity:

3 children by first marriage 3 children by first marriage

2 children by second marriage 1/6 of the estate for each

Surviving second spouse 1/6 of the estate

(B) If the ground of nullity is not psychological capacity:

2 legitimate children ¼ of the estate for each of second marriage

Surviving second spouse ¼ of the estate

3 illegitimate children 1/12 of estate for each of first marriage

Note: The legitime of an illegitimate child is supposed to be ½ the legitime of a legitimate

child or 1/8 of the estate. But the estate will not be sufficient to pay the said legitime of the 3
illegitimate children, because only ¼ of the estate is left after paying the legitime of the

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surviving spouse which is preferred. Hence, the remaining ¼ of the estate shall be divided
among the 3 illegitimate children.

VIII
A died leaving an estate worth P1 million and debts amounting to P300,000. During his
lifetime, A had given donation of P500,000 to B, his legitimate son. When A died, two
legitimate sons, B and C, survived him. How shall the estate of P1 million be distributed?
(10%)

Answer: Paras, p. 359-360

P1 million – P300,000 + P500,000 = P1.2 million (hereditary estate). The legitime is,
therefore, P600,000. But there are two children, hence, each gets P300,000 as his legitime.
The legitime of B is only P300,000. But since he has been given P500,000 as a donation inter
vivos, this should first be charged to the legitime. But there is an excess of P200,000. This
should be taken from the free portion which is P600,000. This leaves a net free portion of
only P400,000, which can be given to anybody. Hence, out of the actual net assets of
P700,000 [because the debts have been deducted] –

C gets P300,000 [as legitime]

B gets 0 [as legitime, since he has already received it in the form of
donation]

Free portion – P400,000

_________
P700,000

IX
In his last will and testament, Lamberto 1) disinherits his daughter Wilma because "she is
disrespectful towards me and raises her voice talking to me", 2) omits entirely his spouse
Elvira, 3) leaves a legacy of P100,000.00 to his mistress Rosa and P50,000.00 to his driver
Ernie and 4) institutes his son Baldo as his sole heir. How will you distribute his estate of
P1,000,000.00? (10%)

SUGGESTED ANSWER: 2000 Bar Exam

The disinheritance of Wilma was ineffective because the ground relied upon by the testator
does not constitute maltreatment under Article 919(6) of the New Civil Code. Hence, the
testamentary provisions in the will shall be annulled but only to the extent that her legitime
was impaired.
The total omission of Elvira does not constitute preterition because she is not a compulsory
heir in the direct line. Only compulsory heirs in the direct line may be the subject of
preterition. Not having been preterited, she will be entitled only to her legitime.
The legacy in favor of Rosa is void under Article 1028 for being in consideration of her
adulterous relation with the testator. She is, therefore, disqualified to receive the legacy of
100,000 pesos. The legacy of 50,000 pesos in favor of Ernie is not inofficious not having
exceeded the free portion. Hence, he shall be entitled to receive it. The institution of Baldo,

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which applies only to the free portion, shall be respected. In sum, the estate of Lamberto will
be distributed as follows:

Baldo P450,000 [P250,000-legitime; P200,000 –

free portion given to Baldo upon his
institution as sole heir]

Wilma P250,000 - legitime

Elvira P250,000 - legitime

Ernie P 50,000 - legacy

P1,000,000

ALTERNATIVE ANSWER:

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

Heir Legitime (P) Legacy (P) Institution (P) Total (P)

Baldo 500,000 200,000 [free 700,000

portion]

Elvira 250,000 250,000

Ernie 50,000 50,000

Total 750,000 50,000 200,000 1,000,000

ANOTHER ALTERNATIVE ANSWER:

Same answer as the first Alternative Answer except as to distribution. Justice Jurado solved
this problem differently. In his opinion, the legitime of the heir who was disinherited is
distributed among the other compulsory heirs in proportion to their respective legitimes,
while his share in the intestate portion, if any, is distributed among the other legal heirs by
accretion under Article 1018 of the NCC in proportion to their respective intestate shares. In
sum the distribution shall be as follows:

Heir Legitime (P) Of Wilma’s Legacy (P) Institution (P) Total (P)

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 Legitime (P)

Baldo 250,000 125,000 200,000 575,000

Wilma (250,000)

Elvira 250,000 125,000 375,000

Ernie 50,000 50,000

Total 500,000 250,000 50,000 200,000 1,000,000

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X
In his will, Reverend Father “R” devised a parcel of riceland in favor of “his nearest male
relative who would study for the priesthood.” The will was duly probated. No nephew of the
testator claimed the devise and the testate proceeding remained pending. In the interim, the
riceland was to be administered by the Parish Priest of the locality pursuant to a project of
partition approved by the Probate Court.

Twenty-one years after the testator’s death, the Parish Priest filed a petition before the Court
for delivery of the riceland to the Church as trustee. The legal heirs of Father “R” objected
and prayed instead that the bequest be declared inoperative and that they be adjudged entitled
to the riceland. It also turned out that the testator had a grandnephew (a grandson of his first
cousin) who was taking the holy order in a Seminary.

Would you construe the testamentary provision liberally so as to render the trust operative
and to prevent intestacy, or would you declare the bequest inoperative and legal heirs entitled
to the riceland. (10%)

Answer: 1980 Bar Exam

It depends.

If the seminarian, who is presently studying for the priesthood, was born or conceived before
the death of Father “R,” it is submitted that the testamentary provision should be liberally
construed so as to prevent intestacy. Therefore, the land should be delivered to the Parish
Priest as trustee or administrator pending fulfillment of the condition. The reason is obvious.
There is the possibility that the seminarian might not become a priest. True, Father “R”
devised the land to his nearest male relative who would study for the priesthood. Once he
becomes a priest, the land should then be delivered to him.

If the seminarian was conceived after the death of Father “R,” the bequest is certainly
inoperative because of non-fulfillment of the condition imposed by the testator. Therefore,
pursuant to the Civil Code, the legal heirs of the testator shall be entitled to the land. In other
words, the land shall be merged in the mass of the hereditary estate, and from there, it shall
pass to the legal heirs in accordance with the rules of intestacy. The reason is crystal clear.
The seminarian cannot inherit from Father “R.” Under our law, in order to be capacitated to
inherit, the heir, legatee or devisee must be living at the moment the succession opens, except
in case of representation when it is proper.

(Note: The above problem is a modification of the actual problem resolved in Parish Priest of
Victoria vs. Rigor, 89 SCRA 493. Hence, the above answer is also a modification of the
decision of the Supreme Court in that case. Despite the modification, however, the same
provisions of the Civil Code applied in the actual case are also applied in the suggested
answer. Thus, with regard to the capacity or incapacity of the seminarian to inherit from the
testator, Art. 1025 of the Civil Code is applicable, and with regard to the effect in case the
seminarian is incapacitated to inherit form the testator, Articles 956 and 960, No. 2 of the
Civil Code are applicable.)

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Quiz No. 25 (Testamentary Capacity & Intent to Codicils and Incorporation by Reference
Art. 796 to Art. 827)

I Clara, thinking of her mortality, drafted a will and asked Roberta, Hannah, Luisa, and
Benjamin to be witnesses. During the day of the signing of her will, Clara fell down the stairs
and broke both her arms. Coming from the hospital, Clara, insisting on signing her will by
thumbmark and said that she can sign her full name later. While the will was being signed,
Roberta experienced a stomachache and kept going to the restroom for long periods of time.
Hannah while waiting for her turn to sign the will, was reading the seventh Harry Potter book
on the couch, beside the table on which everyone was signing. Benjamin, aside from
witnessing the will, also offered to notarize it. A week later, Clara was run over by a drunk
driver while crossing the street in Greenbelt. May the will of Clara be admitted to probate?
Give your reasons briefly. (10%)

Answer: 2007 Bar Exam; Jurado pp. 546-547

Yes, the will of Clara may be probated. A thumbmark has been considered by the Supreme
Court as a valid signature if intended by the testator to be his signature. (Garcia vs. La
Cuesta, G.R. No. L-4067, November 29, 1951; De Gala vs. Gonzales, G.R. No. L-37756,
November 28, 1933). The three-witness rule required for the validity of an ordinary will is
satisfied provided either of the two conditions exists: a. Roberta could see Clara and the other
witnesses sign the will at any time while she was in the toilet, had she wanted to. b. If
Roberta could not have seen Clara and the other witnesses sign the will, the same is valid if
the will was acknowledged before a Notary Public other than Benjamin. It is not necessary
that the testator or the witnesses should actually see the other subscribe their names to the
instrument, provided that he is in a position to see them sign if he chooses. (Neri vs.
Rimando, G.R. No. L-6845, September 1, 1914). Thus, the signing must be considered to be
in the presence of Hannah who was reading a book on the couch beside the table. (Suggested
Answers to the 2007 Bar Examination Questions, PALS).

II During the proceedings for the probate of the will of A, it was proved that while the
testator, A, and two of the instrumental witnesses, B and C, were signing the will and all of
the pages thereof in the sala of As house, the third witness, D, was resting in an adjoining
room which was separated from the sala by a curtain. It is now contended by the oppositors
of the will that since A, B, and C did not sign the will and all of the pages thereof in the
presence of D, the will cannot be admitted to probate. If you are the judge, how will you
decide the case? Reasons. (10%)

Answer: Jurado, pp. 551-552 It is submitted that the will of A cannot be admitted to probate.
As held by the Supreme Court in several cases, the true test of the presence of the testator and
the witnesses in the execution of wills is not whether they actually saw each other sign, but
whether they might have seen each other sign, had they chosen to do so, considering their
mental and physical condition and position with relation to each other at the moment of
inscription of each signature. (Jaboneta vs. Gustilo, 5 Phil. 541; Nera vs. Rimando, 18 Phil.
450; Neyra vs. Neyra, 76 Phil. 296; Dominador vs. Benedicto, 48 Off. Gaz. 213). Here, it is
clear that the curtain separating the adjoining room from the sala impeded the line of vision
of D; consequently, it would not have been possible for D to see the actual signing of the will
by the others had he chosen to do so. Hence, A, B, and C did not sign the will and all of the

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pages thereof in the presence of D. There is, therefore, non-compliance with a mandatory
requirement of the law. (See Nera vs. Rimando, 18 Phil. 450).

III A executed a holographic will. He authenticated or signed the will with his initials. In
addition, there is an inserted testamentary disposition found on page two of the will, also
authenticated with his initials. Are such authentications valid? Why? (10%)

Answer: Jurado, p. 561

We must distinguish. The act of A in signing the will with his initials is a valid
authentication. This is clear form Art. 810 of the NCC. The law merely requires that the will
must be entirely written, dated, and signed by the hand of the testator himself. However, the
act of A in authenticating the inserted testamentary disposition with his initials is not valid
authentication. This is clear from Art. 814 which declares that in case of any insertion,
cancellation, erasure, or alteration in a holographic will, the testator must authenticate the
same by his full signature.

IV A Chinese, domiciled in Argentina, is on his way to Manila. The boat where he is on

board is staying for one day in Japan. In Japan, can he make a will? If so, what countrys
formalities should he observe so that it could produce effect in the Philippines? (10%)

Answer: Paras, p. 122

This is a typical case of an alien abroad. Therefore, he can make a will in accordance with the
testamentary formalities of: Argentina (domicile) China (nationality) Philippines Japan (Art.
17, par. 1) lex loci celebraciones law of the place of execution. It should be noted that Art.
816 speaks only of extrinsic validity. Intrinsic validity is governed by Art. 16.

V A, a Filipino citizen, is residing in China. He executed a last will and testament in

accordance with the formalities of Chinese law. Supposed it has already been probated in
China, is there a need for its probate in the Philippines before it can be enforced here?
Explain. (10%)

Answer: Paras, p. 121; Yu Chengco vs. Tiaoqui, 11 Phil. 598

No. There is no need of an ordinary or usual probate here. What is required however is that
there must be a proceeding here to prove that indeed the will had already been probated
abroad. In other words, the rule is the same as in proving the existence of a foreign judgment.

Here, some answered doctrine of processual presumption - that's wrong. You will prove here
the law of China as a fact. - You will not presume that it be the same as Phil. law.

VI T made a notarial will with A, B, and C as witnesses. In the will, A was given a piece of
land as a device although other heirs were instituted to inherit the other properties. Is the will
valid? Explain? (10%)

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Answer: Paras, p. 130-131 Yes. The will is valid, since there were three credible witnesses, A
being one of them. However, while A is capacitated as witness, he is incapacitated to receive
the devise, hence, the provision regarding said devise should be disregarded, the rest of the
will being valid.

VII Through negligence, one of the three witnesses to a will forgot to sign on the third page
of the original of five-page will, but was able to sign on all pages of the duplicate. All other
requisites were complied with. Can the will be admitted to probate? Explain. (10%)

Answer: 1975 Bar Exam; Jurado, pp. 552-553

Yes, the will may be admitted to probate for the following reasons: a. The inadvertent failure
of one witness to affix his signature to one page of a testament, due to the simultaneous
lifting of two pages, is not per se sufficient to justify denial of probate. The law should not be
so strictly and literally interpreted as to penalize the testator on account of the inadvertence of
one witness over whose conduct he has no control, where the purpose of the law to guarantee
the identity or authenticity of the will has been attained. (Icasiano vs. Icasiano, 11 SCRA
422). b. Besides, there is substantial compliance with the requirements of the law. The
duplicate copy is still very much intact. In addition to complying with all of the requirements
of the law, the duplicate copy shows that the witness, who did not sign the third page of the
original, actually signed on the third page of said duplicate copy. So, even assuming that the
defect in the original is fatal, such defect is cured by an examination of the duplicate copy.

VIII The attestation clause of the will omits to state that the testator signed in the presence of
the witnesses and that the latter signed in the presence of the testator and of one another. May
evidence aliunde be admitted to prove these facts to allow the probate of the will? Explain.
(10%)

Answer: 1975 Bar Exam; Jurado, p. 556

No, evidence aliunde cannot be admitted to prove these facts to allow the probate of the will.
This has been held in some cases decided by our Supreme Court, notably Uy Coque vs. Sioca
and Gil vs. Toledo. This is also the opinion of practically all commentators on the NCC.
There are three essential facts which, according to law, should be stated in the attestation
clause. They are: (a) the number of pages upon which the will is written; (b) the fact that the
testator signed the will and every page thereof, or caused some other person to write his
name, under his express direction, in the presence of the instrumental witnesses; and (c) the
fact that the instrumental witnesses witnessed and signed the will and all pages thereof in the
presence of the testator and of one another. (Art. 805, paragraph 3, NCC). The omission in
the instant case go into the very essence of the attestation clause itself. The defects, therefore,
are not with respect to form or language; they are essential or substantial. Not having the
reliability of a statement in the attestation clause, oral evidence or evidence aliunde should
not, therefore, be allowed to cure such defect. Otherwise, the attestation clause will become
meaningless.

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IX Suppose that after the death of the testator, the only copy of his holographic will which
can be found is a photostatic or photocopy, or a mimeographed or carbon copy, may the will
be admitted to probate? Reasons. (10%)

Answer: Jurado, pp. 560-561

Yes, the will may still be admitted to probate. In the case of Rodelas vs. Aranza (119 SCRA
16) the Supreme Court ruled that the will may be allowed because comparison can still be
made with the standard writings of the testator. Thus, in Footnote 8 of the decision in Gan vs.
Yap (104 Phil. 509), it says that Perhaps it may be proved by a photographic or photostatic
copy, or even a mimeographed or carbon copy; or by similar means, if any, whereby the
authenticity of the handwriting of the deceased may be exhibited and tested before the
probate court.” Evidently, the photostatic or photocopy of the lost or destroyed
holographic will may be admitted because then the authenticity of the handwriting of the
deceased can be determined by the probate court.

X A and B, married couple of French citizenship but residents of the Philippines, went to
Argentina and there executed a joint will mutually instituting each other as sole heir, which
will is valid according to the law of the state. Subsequently, they returned to the Philippines
where A died. May the joint and mutual will executed in Argentina be probated as valid in
the Philippines? Reasons. (10%)

Answer: 1971 Bar Exam; Jurado, p. 565

The joint and mutual will executed in Argentina by A and B may be probated as valid in the
Philippines. True, Art. 818 of the NCC prohibits two or more persons from making a will
jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a
third person, and Art. 819 of the same Code extends this prohibition to joint wills executed by
Filipinos in a foreign country, even though authorized by the laws of the country where they
may have been executed. But when, from the phraseology of Art. 819 itself, there is a clear
implication that the prohibition does not apply to foreigners, and certainly, A and B are
foreigners. Therefore, the provision of the 3rd par. of Art. 17 of the NCC which declares that
prohibitive laws concerning persons, their acts or property, and those which have for their
object public order, public policy and good customs shall not be rendered ineffective by laws
or judgments promulgated or by determinations or conventions agreed upon in a foreign
country, cannot be applied in the instant case. What is applicable is the first paragraph of the
same article, which declares that forms and solemnities of contracts, wills, and other public
instruments shall be governed by the laws of the country in which they are executed. (See
also Art. 816, NCC).

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Below is the Answer Key to Quiz No. 26.

Quiz No. 26 (Revocation of Wills and Testamentary Dispositions to Conditional

Testamentary Dispositions and Testamentary Dispositions with a Term Art. 828 to Art. 885)

I Randy has executed a will. He is single. He bequeathed one-hectare land worth P5 million
along Pasig River to Mario. The will further provided that all of his other assets shall be
divided equally to his three brothers, namely: John, Jason, and Danny. He subsequently
married, Rita, a young woman, begot a son, Randy, Jr., and left another will designating Rita
and Randy, Jr. as his heirs in equal shares. The second will did not expressly revoke the 1st
will. He left an estate worth P6 million (including the land). Assume that there is only partial
incompatibility between the testamentary dispositions. (a) Who is entitled to the one-hectare
land? Reasons. (5%) (b) Who acquires the rest of the assets? Explain. (5%)

Answer: Jurado, pp. 571-573 (with change in characters, values and sentence construction).
Since there is an assumption of partial incompatibility, the first view in Jurados Reviewer
will no longer be considered as a correct answer. (a) Randy, Jr., Rita, and Mario. It must be
observed that the testator left two wills. In his first will, he bequeathed the land to Mario and
instituted as heirs in equal shares his three brothers with respect to the rest of his estate. In his
second will, he instituted his wife and his son as heirs in equal shares. Under our law on
revocation of wills, a will may be revoked by another will. The revocation may be effected
either expressly or impliedly. Since there is no express revocation, is there an implied
revocation in the instant case? It is undeniable that there is an implied revocation if the
testamentary dispositions found in the first will are totally or partially incompatible with
those found in the second will. It is also undeniable that the incompatibility must be absolute
in character in the sense that the testamentary dispositions cannot stand together. The real
issue, therefore, is whether the two testamentary dispositions found in the first will can stand
together with the single testamentary disposition found in the second will. In this case, there
is an assumption of partial incompatibility. Only the institution of his three brothers in the
first will as heirs and that portion or part of the bequest given to Mario which will impair the
legitime of the testators son and widow are revoked by the second will. The reason is that it is
only to that extent that there is an absolute incompatibility between the testamentary
dispositions found in the first will and those found in the second will. Consequently, Mario
shall be entitled to the land but only to the extent that it does not encroach upon the legitime
of the testators son and widow. (NOTE: The above answers are based on the law on
revocation of wills, such as Art. 830, et. seq., NCC and on well-settled principles in
American jurisprudence. Thus, whether the bar candidate will solve the problem either in
accordance with the first view or in accordance with the second view, it should be considered
a correct answer.) (b) Randy, Jr. and Rita. The testators son shall be entitled to a legitime of
½ of the entire estate, or P3 million; the widow shall be entitled to a legitime of ¼ of the
entire estate, or P1.5 million to be taken from the free portion. That means that the bequest in
favor of Mario is inofficious to the extent of P3.5 million. Consequently, said bequest or

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devise should be reduced by P3.5 million. Therefore, Mario shall be entitled only to an
undivided share of P1.5 million worth of the land which is the disposable free portion.

II John executed a will in April 10, 2010. However, she executed another will in July 23,
2011. There is an express revocatory clause in the second will wherein the testator
categorically declared that he is revoking the will executed in 2010. In both wills, however,
his wife, Janet, is the only beneficiary. After the death of John in 2015, the second will was
presented for probate, but it was disallowed for non-compliance with the formalities
prescribed by law. In despair, Janet presented a copy of the will executed in 2010 for probate
in the same Court. The probate is now contested by the nephews and nieces of the testator on
the following grounds: first, that the will has already been revoked by the will executed in
2011; and second, that granting, without admitting, that the second will did not really revoked
the will of 2010, yet the fact remains that when John executed the will of 2011, he destroyed
the will of 2010 with intent to revoke. If you were the judge, how will you decide the case?
Reasons. (10%)

Answer: Jurado, pp. 573-574

If I were the judge, I would decide in favor of the probate of the will which John executed in
2010. The two grounds invoked by the oppositors for contesting the probate of the will may
very well be invoked as the reasons for admitting the will to probate. (1) It should be noted
that the will executed in 2011 was disallowed by the probate court. The effect of such
disallowance is to render the will void. If the will is void, the revocatory clause is also void.
Therefore, the will of 2010 was never revoked. (Samson vs. Naval, 41 Phil. 638; Molo vs.
Molo, 90 Phil. 37) (2) With regard to the second ground, it should be noted that under the
doctrine of dependent relative revocation, the objection will not lie. The doctrine may be
stated as follows: If the testator revokes his will with the present intention of making a new
one immediately and as a substitute, and the new will is not made, or if made, fails to take
effect for any reason whatsoever, it will be presumed that the testator prefers the old will to
intestacy; consequently, the old will can still be admitted to probate. In other words, the
revocation is subject to a suspensive condition that the testator will make a new will and that
such will shall take effect. If such condition is not fulfilled, then there is no revocation. It is
evident that under this doctrine, recognized by the Supreme Court and applied for the first
time in this jurisdiction to a case with similar facts (Molo vs. Molo, 90 Phil. 37), the will of
John executed in 2010 can still be admitted to probate as his last will and testament.

III A executed a will with his nephew, B who was living with him, as principal beneficiary.
With intent to revoke the will, he sent B to get the it from his safe so that he could destroy it.
B however, knowing of the intent of his uncle, submitted another paper inside the envelope
and hid the real will. It was this envelope which he gave to the testator. The latter, without
investigating the contents, subsequently destroyed it by burning. After A s death, B presented
the will, which he had hidden, for probate. Is there a revocation in this case? Decide, stating
your reasons. (10%)

Answer: Jurado, pp. 574-575 There is no revocation by burning because, although there was
the intent to revoke, yet there was no actual act of physical destruction. Not all the intention

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in the world without the destruction can revoke a will. The two must always go together. But
then, the act of B is classified as an act of unworthiness under No. 7 of Art. 1032 of the NCC.
Consequently, B cannot inherit from A Therefore, although there is no revocation of will
under No. 3 of Art. 830 of the NCC, there is a revocation of the testamentary disposition in
favor of B by implication of law.

IV A presented a will purporting to be the last will and testament of his deceased wife for
probate. The will was admitted to probate without any opposition. Sixteen months later, the
brothers and sisters of the deceased discovered that the will was a forgery. Can A now be
prosecuted for the criminal offense of forgery? (Reasons). (10%)

Answer: Jurado, pp. 582-583

No. A can no longer be prosecuted for the criminal offense of forgery. This is so because,
according to the last paragraph of Art. 838 of the NCC, subject to the right of appeal, the
allowance of the will, either during the lifetime of the testator or after his death, shall be
conclusive as to its due execution. Since 16 months have already elapsed from the allowance
of the will to the time when the forgery was discovered, there is no possible remedy of
impugning the validity of the will. Even a petition to set aside a judgment or order of a CFI
on the ground of fraud in accordance with Secs. 2 and 3 of Rule 38 of the Rules of Court is
no longer possible because more than six months from the time of the promulgation of the
judgment or order have already elapsed. (Mercado vs. Santos, 66 Phil. 215). (NOTE: In
connection with the above problem, the following excerpt from Gallanosa vs. Arcangel, 83
SCRA 676, 685, should be self-explanatory: It is fundamental concept in the organization of
every jural system, a principle of public policy, that, at the risk of occasional errors, judgment
of courts should become final at some definite date fixed by law. Interest rei publicae ut sit
finis litum. The very object for which the courts were constituted was to put an end to
controversies. After the period for seeking relief from a final order or judgment under Rule
38 of the Rules of Court has expired, a final order or judgment can be set aside only on the
grounds of (a) lack of jurisdiction or lack of due process of law or (b) that the judgment was
obtained by means of extrinsic or collateral fraud. In the latter case, the period for annulling
the judgment is four years from the discovery of the fraud.)

V A died in 1970 with a will. In the will, he devised a house and lot to B as fiduciary heir and
to the latters son, C. a fideicommissary substitute, declaring that said property shall not be
alienated for 100 years. B died in 1985. May C now validly alienate the property? (10%)

Answer: Jurado, p. 600

No. 3 of Art. 867 of the NCC provides that provisions which contain a perpetual prohibition
to alienate, and even a temporary one, beyond the limit fixed in Art. 863 shall not take effect.
There are two limitations stated in Art. 863. They are: First, that the substitution must not go
beyond one degree from the heir originally instituted, and second, that both the first heir and
the second heir must be living at the time of the death of the testator. It is evident that in
testamentary dispositions which contain a perpetual or temporary prohibition to alienate,
neither one nor the other can possibly be violated. The only limitation which is violated is
that provided for in Art. 870. The prohibition to alienate is good for 20 years. Beyond that, it

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is void. We believe that this is what is really meant by the law. Therefore, in the instant
problem, C must still wait for 1990 before he can validly alienate the property.

VI The testator instituted his heirs this way, I institute as my heirs, A, B and the three
children of C to my estate of P450,000.00. How much does each of the three children get?
(10%)

Answer: Paras, p. 208-209

Art. 847 provides, When the testator institutes some heirs individually and others collectively
as when he says, I designate as my heirs A and B, and the children of C,those collectively
designated shall be considered as individually instituted, unless it clearly appears that the
intention of the testator was otherwise. Each of the three children gets P90,000. Reason:
Although collectively designated, they shall be considered individually instituted (estate to be
divided into five), unless it clearly appears that the testators intention was otherwise.

VII A died with a will in 1970. In the will, he instituted his legitimate son, B, as sole heir,
omitting N, an acknowledged natural son, completely. In 1960, however, A had donated to
the latter a parcel of land worth P20,000.00. The residue of As estate is P100,000.00. Is there
a preterition which will result in the total annulment of the institution of heir? (10%).

Answer: Jurado, pp. 587-588

It is submitted that there is no preterition. Although, there is no question that N is a

compulsory heir in the direct line, yet he had received a donation inter vivos at P20,000.00
from the testator. In order that there will be a preterition as contemplated by Art. 854 of the
NCC, it is indispensable that the omission of the heir should be total and complete in such a
way that he has not received anything from the testator by any title whatsoever. This is so
because the essence of preterition is that the omitted heir must be totally deprived impliedly
of his legitime. Here, there is no total deprivation.

VIII X made three wills. Will No. 2 expressly revoked Will No. 1. Will No. 3 revoked Will
No. 2. Is Will No. 1 revived? Explain. (10%)

Answer: Paras, p. 153 No, by express provision of Art. 837 which states, If after making a
will, the testator makes a second will expressly revoking the first, the revocation of the
second will does not revive the first will, which can be revived only by another will or
codicil. The rule is based on the principle that the revocatory clause of the second will took
effect immediately or at the instant the revoking will was made. (This is the principle of
INSTANTER thus, we say, the clause revoked the first will that contains said clause.) In
other words, the theory is that death does not have to come before giving effect to a
revocatory clause. Stated otherwise, while a will is a disposition mortis causa, a revocation
takes effect, inter vivos.

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IX Mr. Reyes executed a will completely valid as to form. A week later, however, he
executed another will which expressly revoked his first will, following which he tore his first
will to pieces. Upon the death of Mr. Reyes, his second will was presented for probate by his
heirs, but it was denied probate due to formal defects. Assuming that a copy of the first will is
available, may it now be admitted to probate and given effect? Why? (10%)

Answer: De Leon, p. 193; Aquino, p. 270-271

Yes, the first will may be admitted to probate and given effect under the doctrine of
dependent relative revocation. Mr. Reyes appears to erroneously believe that the second will
was valid when he revoked the first will. The revocation was invalid since the second will is
invalid. (In relation to Art. 832).

X X died in 1970, survived by his two legitimate children, A and B, and by his three
grandchildren; D, E, and F, legitimate children of C, a legitimate child of X who predeceased
him. In his will, he instituted A, B, the children of C, and a friend, M, as heirs without
designating their shares. The residue of his estate is P180,000.00. How shall the distribution
be made? (10%)

Answer: Jurado, p. 585

There are two provisions of the NCC which must be applied first, Art. 846 which declares
that heirs instituted without designation of the shares shall inherit in equal parts, and second,
Art. 847, which declares that when the testator institutes some heirs individually and others
collectively as when he says, I designate as my heirs A and B, and the children of C,those
collectively designated shall be considered as individually instituted, unless it clearly appears
that the intention of the testator was otherwise. Manresa, commenting on these provisions,
maintains that where there are compulsory heirs among the heirs instituted, or where all of
them are compulsory heirs, the provision of Art. 846 should be applied only to the disposable
free portion. (6 Manresa, 7th Edition, pp. 116-117). It is submitted that this is the correct
view. Consequently, the distribution shall be made as follows: First, satisfy the legitime of A,
B, D, E, and F. A and B shall be entitled to P30,000.00 each, in their own right, while D, E
and F shall be entitled to P10,000.00 each, by right of representation. Then, the free portion
of P90,000.00 shall be divided among the instituted heirs, A, B, D, E, F, and M in equal parts
in accordance with Arts. 846 and 847 of the Code. Therefore, the shares of each will be: A
P30,000.00 As compulsory heir P15,000.00 As voluntary heir B P30,000.00 As compulsory
heir P15,000.00 As voluntary heir D P10,000.00 By right of representation P15,000.00 As
voluntary heir E P10,000.00 By right of representation P15,000.00 As voluntary heir F
P10,000.00 By right of representation P15,000.00 As voluntary heir M P15,000.00 As
voluntary heir.

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Below is the Answer Key to Quiz No. 27.

Quiz No. 27 (Legitime to Legacies & Devises Art. 886 to Art. 959)

I The testator T is survived by his widow, W, his legitimate children, A and B, and his
acknowledged natural children, C and D. The net value of his estate is P40,000.00. What is
the legitimate of each of the survivors? (10%)

Answer: Jurado, p. 614

According to Art. 888, the legitime of A and B is ½ of the estate. They are, therefore,
entitled to P10,000.00 each. The surviving spouse, W, under Art. 897 of the NCC is entitled
to a legitime equal to the legitime of either A or B which must be taken from the free
portion. Hence, her legitime is also P10,000.00. Under the first paragraph of Art. 895, the
legitime of each of the acknowledged natural children shall consist of ½ of the legitime of
each of the legitimate children or descendants. However, the FC has limited the classification
of children to only the legitimate and the illegitimate children, thereby, eliminating the
categories of natural children by legal fiction and spurious children. Under Art. 176, second
sentence of the FC, the legitime of each illegitimate child shall consist of ½ of the legitime
of the legitimate child. Hence, the acknowledged natural children C and D now classified as
illegitimate children shall each receive P5,000.00 as their legitime. Nothing remains for free
disposal.

II The testator is survived by his legitimate parents, F and M, his wife W, and two illegitimate
children, A and B. A is an acknowledged natural child, while B is an adulterous child. The
net value of the estate is P72,000.00. What is the legitime of the survivors? (10%)

Answer: Jurado, p. 617

The legitime of F and M is ½ of the estate (Art. 889), or P36,000.00, which they shall divide
equally. (Art. 890). The legitime of W is 1/8, or P9,000.00. (Art. 899). The legitime of A and
B is ¼, or P18,000.00. (Art. 899). Under the FC, the legitime of acknowledged natural child
and the adulterous child, both classified as illegitimate children, shall be the same, which they
shall divide equally. The amount of P18,000.00 must, therefore, be divided between the
illegitimate children equally. Consequently, A shall be entitled to P9,000.00 and B shall also
be entitled to P9,000.00. That leaves P9,000.00 of the entire P72,000.00 as the testator s free
disposal. (NOTE: In view of the FC, the amount of P18,000.00 is no longer required to be
divided between the two illegitimate children in the proportion of 5:4).

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III The testator, an illegitimate person, is survived by his parents by nature, F and M, and his
widow, W. The net value of his estate is P80,000.00. What is the legitime of the survivors?
(10%)

Answer: Jurado, p. 619 The legitime of F and M is ¼ of the entire estate, or P20,000.00,
while that of W is also ¼ of the entire estate, or P20,000.00. (Art. 903, NCC). That leaves
½ of the entire estate, or P40,000.00 at the testators disposal.

IV Anacleto got married to Maria in 1930. They had only one daughter, Juliana. Maria died
in 1940, survived only by her husband, Anacleto, her daughter, Juliana, and her sisters, Leona
and Evarista. In 1941, Anacleto got married to Andrea. They had six children. In 1950,
Juliana died without issue. In 1955, Anacleto also died. After his death, Andrea and her six
children took possession of all his properties, including a parcel of land which Anacleto and
Maria had acquired by purchase in 1935. Who is now entitled to this property? (10%)

Answer: Jurado, pp. 623-624

Leona and Evarista are now entitled to ½ of the property, while Andrea and her six children
are entitled to the other ½ which they shall divide in equal shares. Undoubtedly, ½ of said
property is reservable in accordance with Art. 891 of the NCC. It is admitted that it belonged
to the conjugal partnership of Anacleto and Maria; that upon the death of the latter, Juliana
inherited in accordance with the laws of intestate succession then in force ½ of the property,
the other half pertaining to her father; that upon the death of Juliana, her father Anacleto,
inherited from her ½ portion of said property. Therefore, pursuant to Art. 891 of the NCC,
Anacleto was obliged to reserve the portion he had thus inherited from his daughter for the
benefit of Leona and Evarista, aunts of Juliana in the maternal side, who are her relatives
within the third degree belonging to the line from which said property came. (Aglibot vs.
Manalac, 4 SCRA 1030).

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V Princess married Roberto and bore a son, Onofre. Roberto died in a plane crash. Princess
later married Mark and they also had a son, Pepito. Onofre donated to Pepito, his half-
brother, a lot in Makati City worth P3,000,000.00. Pepito succumbed to an illness and died
intestate. The lot given to Pepito by Onofre was inherited by his father, Mark. Mark also died
intestate. Lonely, Princess followed Mark to the life beyond. The claimants to the subject lot
emerged, Jojo, the father of Princess; Victor, the father of Mark; and Jerico, the father of
Roberto. Who among the three claimants is entitled to the lot? Explain. (10%)

Answer: Jurado, pp. 629-630; 2016 Bar Exam

Jojo, the father of Princess, is the ascendant entitled to the lot. In reserva truncal or lineal,
there are always four elements, which are all present in this case. They are: First, the origin of
the property, who must be an ascendant or a brother or sister of the descendant-propositus.
Here, Onofre is the Origin. Second, the descendant-propositus, who should have acquired the
property from the origin by gratuitous title and who should have died without any legitimate
issue in the direct descending line who could inherit from him. Here, Pepito is the
descendant-propositus. He acquired the property by way of gratuitous title through donation
from Onofre. Third, the ascendant-reservista or reservoir, who should have inherited the
property by operation of law from the descendant-propositus. Mark is the Ascendant
Reservista or Reservor in the above problem. He acquired the lot from Pepito, his son, by
operation of law through his legitime and intestacy. Fourth, the reservatario or reservatarios
(reserve or reserves), who must be relatives of the descendant-propositus within the third
degree, and at the same time, must belong to the line from which the property came. Princess
is the Reservatario in the instant problem. She is a relative of Descendant-Propositus Pepito,
within the third degree and who belonged to the line of origin. This is the maternal line since
the Origin Onofre and the Descendant-Propositus Pepito are maternal half-blood siblings.
When Ascendant Reservista Mark died intestate, the property was transmitted to the sole
Reservatario Princess. (Art. 891, NCC). One of the causes for the extinguishment of reserva
truncal is the death of the ascendant-reservista. So, when the property was transmitted to
Reservatario Princess, reserva truncal was extinguished, thus, making Reservatario Princess
the absolute owner but no longer subject to reserva. When Princess died, the property was
transmitted to her father, Jojo, by ordinary rules of compulsory and intestate succession.

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VI Don Jose Reyes, before his death in 1945, donated to his grandson, Ramon Reyes, a child
of his deceased son, Arturo Reyes, a house and lot worth P60,000.00. In 1950, Ramon Reyes
died with a will instituting his mother, Dona Maria Unson Vda. de Reyes, as his sole heir. His
estate consisted entirely of the house and lot which he had received from Don Jose. In 1960,
Dona Maria also died but without a will. The house and lot are now claimed by the following:
1) Dona Juana Vda. de Reyes, widow of Don Jose and grandmother of Ramon; 2) Don Juan
Reyes, son of Don Jose and Dona Juana and uncle of Ramon; and 3) Dona Alicia Unson,
sister and only living relative of Dona Maria. If you were the judge, to whom shall you
adjudicate the property? (10%)

Answer: Jurado, pp. 630-631

If I were the judge, I would give ½ undivided share of the property to Don Juan Reyes and
the other half to Dona Alicia Unson. It must be observed that Ramon Reyes, the propositus,
died with a will instituting his mother, Dona Maria, as sole heir. Consequently, only ½ of
the property passed to her by operation of law since that is her legitime, while the other half
passed to her by will. Under Art. 891 of the NCC, only that property which passes by
operation of law to the descendant-reservista is reservable. With this as a starting proposition,
we can now decide the claim of each of the respective claimants. 1) Dona Juana, although a
relative of the propositus in the second degree, is merely related by affinity to the ascendant
from whom the property came. She does not, therefore, belong to the line from which the
property came as required by Art. 891. According to Sanchez Roman, the reservatario must
not only be related by consanguinity to the descendant-propositus within the third degree, but
he must also be related by consanguinity to the ascendant from which the property came. (6
Sanchez Roman 1015). Consequently, Dona Juana is not entitled to the reservable part of the
property. 2) It follows, therefore, that the reservable part of the property shall be adjudicated
to Don Juan Reyes, since he is not only a third degree relative by consanguinity of the
propositus, but he also belongs to the line from which the property came. 3) Dona Alicia, on
the other hand, is entitled to the part of the property which is not reservable in accordance
with the ordinary rules of intestate succession.

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VII Two parcels of land were registered in 1951 in the name of A, with an annotation of the
right of X as reservatario in the Certificate of Title. A died in 1958, survived by several
children. Upon his death, X filed a motion with the Registration Court, praying for the
cancellation of the original Title and for the issuance of a new one in his name. This was
opposed by the children of A, who contended that the claim of the reservatario should be
decided in an ordinary intestate proceeding. 1) If you are the judge, how will you decide the
motion of X? (5%) 2) Suppose there are creditors of A, can they proceed against the
reservable property? (5%)

Answer: Jurado, pp. 637-638 1)

The right of the reservatario was expressly recognized by the decree of registration issued by
the court. This decree having become final, all persons are now barred from contesting the
right. The only requisites for passing of title form the reservista to the reservatario are: (a) the
death of the reservista, and (b) survival of the reservatario. The contention that the right of the
reservatario must be decided in an intestate proceeding is, therefore, untenable. The
reservatario is not the reservistas successor mortis causa not is the property part of the
reservistas estate. The reservatario receives the property as conditional heir of the
descendant-propositus, said property merely reverting to the line of origin from which it had
temporarily and accidentally strayed during the reservistas lifetime. As a consequence, upon
the death of the reservista, the reservatario nearest the propositus becomes automatically and
by operation of law the owner of the reservable property. (Cano vs. Director of Lands, 105
Phil. 1). 2) The creditors of A cannot proceed against the reservable property because such
property is not part of his estate. Upon the death of A, the property passed automatically and
by operation of law to X. (Cano vs. Director of Lands, ibid.).

VIII The value of the testators estate at the time of his death is P40,000.00. However, the
claims against his estate based on obligations incurred during his lifetime amounted to
P10,000.00. During his lifetime, he had also made two donations P15,000.00 to a legitimate
child, A, and another P15,000.00 to a friend, F. In his will, he instituted his two legitimate
children, A and B, as his heirs. How shall his estate be distributed? (10%)

Answer: Jurado, pp. 643-644

First deduct the debts amounting to P10,000.00 from the value of the testators estate, thus,
leaving a net remainder of P30,000.00. To this remainder collate the two donations, thus
making a total of P60,000.00. It is from this amount that the legitime of A and B shall be
determined. Their legitime is ½ of P60,000.00, or P30,000.00. Since the donation of

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P15,000.00 to A is a donation to a compulsory heir, it shall be imputed or charged to the
legitime of the heir or donee. (Art. 909, paragraph 1). There is neither a balance nor an
excess. Hence, it is presumed that the testator is making the donation had merely advanced
legitime of A. The P15,000.00 donation to F, on the other hand, shall be imputed or charged
to the disposable portion. (Art. 909, paragraph 2). There is a balance of P15,000.00. This
balance shall be distributed equally between A and B. Thus, A shall retain the P15,000.00
donation and, at the same time, shall receive ½ of P15,000.00, or P7,500.00; B shall receive
P15,000.00 as legitime plus ½ of P15,000.00, or a total of P22,500.00.

IX A died leaving a will containing three testamentary clauses. In the first clause, he
instituted his tow legitimate children, B and C, as his universal heirs; in the second clause, he
disinherited his legitimate child, D, without specifying the cause; and in the third clause, he
left a legacy of P10,000.00 to a third person, E. The net remainder of his estate is P60,000.00.
How shall such estate be distributed? (10%)

Answer: Jurado, pp. 650-651

In the first place, since the only compulsory heirs surviving the testator are three legitimate
children, B, C, and D, therefore, ½ of the net remainder of the estate, or P30,000.00, is
reserved as their legitime, while the other half, or P30,000.00, is free or disposable. (Art. 888,
NCC). In the second place, the disinheritance of D is imperfect because there is no
specification of the cause; consequently, it shall result in the partial annulment of the
institution of B and C as heirs insofar as Ds legitime of P10,000.00 is prejudiced. (Art. 918,
NCC). In the third place, the legacy of P10,000.00 to E is not inofficious since it can easily be
contained within the free portion of P30,000.00; hence, it does not impair the legitime of the
three compulsory heirs which in the instant case is also P30,000.00. (Art. 918, NCC).
Therefore, the estate shall be distributed as follows: B P10,000.00 As compulsory heir
P10,000.00 As voluntary heir C P10,000.00 As compulsory heir P10,000.00 As voluntary
heir D P10,000.00 As compulsory heir E P10,000.00 As legatee Total P60,000.00

X X, prior to his death, executed a will wherein he gives to his legitimate children, A and B,
only their legitime. He bequeaths P5,000.00 to a friend R as renumeration for past services,
P10,000.00 to S for support, P15,000.00 to E for education, and P10,000.00 to F as ordinary
legacy. The net value of his estate is only P40,000.00. How shall the estate be distributed?
(10%)

Answer: Jurado, p. 658

Since the legitime of the two children has already been provided for by the testator, it is
evident that the conflict with regard to the disposable free portion is exclusively among the
legatees. Hence, Art. 950 of the NCC shall apply. The legacy to R shall be satisfied ahead of
the others. That leaves only P15,000.00 out of the free portion. The legacy of S shall then be
satisfied. That leaves only P5,000.00 out of the free portion, all of which shall go to E.
Hence, nothing remains for F.

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