Art. 960.
Legal or intestate succession takes place:
(1) If a person dies without a will, or with a
void will, or one which has subsequently lost
its validity;
(2) When the will does not institute an heir to,
or dispose of all the property belonging to the
testator. In such case, legal succession shall
take place only with respect to the property of
which the testator has not disposed;
(3) If the suspensive condition attached to the
institution of heir does not happen or is not
fulfilled, or if the heir dies before the testator,
or repudiates the inheritance, there being no
substitution, and no right of accretion takes
place;
(4) When the heir instituted is incapable of
succeeding, except in cases provided in this
Code.
Article 960 does not provide the definition of legal
succession but rather these are instances of legal
succession.
It is called legal succession because it is in accordance with
the law. There is no will that will dictate how the
succession will take place.
(1) If a person dies without a will, or with a void
will, or one which has subsequently lost its
validity;
Note: There is no will here or that the will created was
subsequently declared void or revoked e.g failure to
follow the formalities. Any of these circumstances,
legal or intestate succession takes place.
(2) When the will does not institute an heir to, or
dispose of all the property belonging to the
testator. In such case, legal succession shall take
place only with respect to the property of which
the testator has not disposed;
Note: Emphasis on no institution of heirs in the estate.
A will that disposes some parts of the property and
some are not is called a mixed succession hence both
governed by testamentary and intestate succession.
If only the disinheritance is stated in the will it will be
valid and what will govern is intestate succession.
(3) If the suspensive condition attached to the
institution of heir does not happen or is not
fulfilled, or if the heir dies before
the testator, or repudiates the inheritance, there
being no substitution, and no right of accretion
takes place;
Suspensive condition – is where the institution of the heir is
subject to the fulfillment of the condition. If such condition
does not happen then there is no institution to be given
effect.
Predeceased – heir dies before the testator and there is no
other representative to succeed or no right of
representation.
Repudiated – did not accept what was instituted in the will.
Follow: ISRAI
(4) When the heir instituted is incapable of
succeeding, except in cases provided in this
Code.
Note: If the instituted heir is incapacitated, the estate will
be distributed through intestate succession.
OTHER INSTANCES WHEN LEGAL OR
INTESTATE SUCCESSION TAKES PLACE: (PIFA)
1. Preterition- inadvertently omitting compulsory
heirs from the will, depriving him of his legitime.
2. Improper Disinheritance-
3. Fulfillment of a resolutory condition – fulfillment
of which will result to the extinguishment or
recovery of the estate from the person given
through will.
4. Arrival of the resolutory period – will terminate
the inheritance.
TESTATE OF RIGOR VS RIGOR
The Civil Code recognizes that a person may die partly
testate and partly intestate, or that there may be mixed
succession. The old rule as to the indivisibility of the
testator's win is no longer valid. Thus, if a conditional
legacy does not take effect, there will be intestate
succession as to the property recovered by the said
legacy.
The administration over the rice lands was subject to a
condition that the church will only administer the land in
the interim period while there is still no male relative

taking priesthood or that when such male relative be
excommunicated. Since there was no relative who
became a priest, therefore that disposition became
inoperative.
The church was not instituted as an heir, but only to
administer the property. So, since there was no nearest
male relative who was studying priesthood, that portion
now became vacant, and legal succession would now be
applied.
As mentioned, what we have here is not really
“intestate”, but “legal succession” only as that portion
because there was that portion of the Will with regard to
other properties wherein devisees were named such as
the sibling of Father Rigor.
Jus Imperi- Under the legal or intestate succession, the
State is also an heir (as we discuss along the way.)
Art. 961. In default of testamentary heirs, the law vests
the inheritance, in accordance with the rules hereinafter
set forth, in the legitimate and illegitimate relatives of
the deceased, in the surviving spouse, and in the State.
Who are considered as legal heirs? (There is NO ORDER
OF PREFERENCE)
Legitimate children and descendants Illegitimate children
or descendants
In the absence of legitimate children, legitimate parents or
ascendants

Note:
Legal or intestate succession are where dispositions are
provided by LAW hence, the heirs are called LEGAL
HEIRS. The law presumes it based on the will or the
presumed will of the testator.
In intestate succession it is important to prove the
relationship with the deceased.
Surviving spouse
The State (not compulsory heirs)
Brothers and sisters (legal heirs, but not compulsory heirs.)
Although, in legal succession there is no disinheritance
because there is no will there can still be legal heirs who
can be EXCLUDED. How?

1. Express – that is disinherit; and

FORCED LEGAL/INTESTATE 2. Implied – being a legal heir, he is not mentioned in the

SUCCESSION
There is forced succession
pertaining to the legitime
regardless if the testator
consents to it or not.
These are compulsory
heirs to which their
legitime must be given to
the testator.
SUCCESSION
Dispositions of the estate
in the absence of a will is
provided by law.
The disposition is based
on the presumed will of
the testator.
last will and testament
a. purely by will – he will not receive anything
b. in mixed succession or intestate succession – he may
receive something depending on the rule on proximity or
rule of preference which will be discussed later on.
If the legal heirs are NOT compulsory heirs. Testators are
not required to give them anything pertaining to their estate
because the law provides who shall receive the estate first
and who will not be deprived of the inheritance.

Relatives in the 5th degree can inherit but they are the least
To reiterate, to be considered as an heir, proof of filiation
priority. If the compulsory heirs are not available, the 5 th
must be presented. You can prove filiation by:
degree relatives are prioritized and if there are no 5 th degree
relatives, the property will go to the State.
Jus Familiae - Relationship arising out of the family to
which the heir and testator belong.
Also remember these rules:

Jus Sanguini - Blood relationship between a parent and the

When talking about relatives, we have the relatives in the
child. This is the most important source of right to inherit in
direct line who are the descending or ascending line and
legal or intestate succession.
collateral line.

Jus Conugi - Relationship arising out of conjugal

The direct line is preferred over the collateral line.
relationship or marriage. The basic source of right of the
spouses to inherit from each other.
In the direct line, descending line is preferred over
ascending line.
Preference of degree or those relatives closer in degree with
regard to relationship are entitled to inherit better than those
who are farther in degree. People who are closer is degree,
however, are subject to one exception–Right of
Representation
Through representation, a person in the lower degree (Ex:
child), is raised to the category of the person to be
represented (Ex: parent), whether such person belongs to
the first degree or second degree.
Art. 962. In every inheritance, the relative nearest in
degree excludes the more distant ones, saving the right
of representation when it properly takes place.
Relatives in the same degree shall inherit in equal
shares, subject to the provisions of article 1006 with
respect to relatives of the full and half blood, and of
Article 987, paragraph 2, concerning division between
the paternal and maternal lines.
RULE ON PROXIMITY: The nearer excludes the
farther.
RULE OF EQUAL DIVISION:
GR: Relatives in the same degree shall inherit in equal
share o (for example, siblings)
XPNS:
(1) Article 1006 with respect to the relatives of full
blood and half blood.
In legal succession, the full blood relatives are
entitled to twice as much as those of the half-
blood relatives.
(2) Article 987 concerning the division between
maternal and paternal lines (rights);
(3) (Application of the) Right of representation;
and
(4) In legal succession and the same in
testamentary succession, illegitimate children
only get ½ of the share of one legitimate child.
Art. 963. Proximity of relationship is determined by the
number of generations. Each generation forms a degree.
Ex. One degree is father to son.
Two degrees is son to grandfather
ARTICLE 964. A series of degrees forms a line, which
may be either direct or collateral. A direct line is that
constituted by the series of degrees among ascendants
and descendants. A collateral line is that constituted by
the series of degrees among persons who are not
ascendants and descendants, but who come from a
common ancestor.
A collateral line is that constituted by the series of degrees
among persons who are not ascendants and descendants,
but who come from a common ancestor, such as siblings.
Art. 965. The direct line is either descending or
ascending.
The former unites the head of the family with those who
descend from him.
The latter binds a person with those from whom he
descends.
Art. 966. In the line, as many degrees are counted as
there are generations or persons, excluding the
progenitor.
In the direct line, ascent is made to the common
ancestor. Thus, the child is one degree removed from the
parent, two from the grandfather, and three from the
great-grandparent.
In the collateral line, ascent is made to the common
ancestor and then descent is made to the person with
whom the computation is to be made. Thus, a person is
two degrees removed from his brother, three from his
uncle, who is the brother of his father, four from his first
cousin, and so forth.
GREAT-GRANDPARENT
|
GRANDPARENT
|
PARENT
|
CHILD
 A. child to the great-grandparent: three degrees
B. child to the grandparent: two degrees
C. child to the parent: one degree
Art. 967. Full blood relationship is that existing between
persons who have the same father and the same mother.
Half blood relationship is that existing between persons
who have the same father, but not the same mother, or
the same mother, but not the same father.
Art. 968. If there are several relatives of the same
degree, and one or some of them are unwilling or
incapacitated to succeed, his portion shall accrue to the
others of the same degree, save the right of
representation when it should take place.
These are heirs who are who are unwilling or incapacitated.
Their shares will then accrue to the other siblings except if
there is right of representation (child will represent the
sibling)
Scenario:
If Juan is incapacitated he will now be represented by his
children Arvin and Ryan. If for example, the NHE of the
decedent is 1M, if it will be distributed among these heirs,
Juan and Pedro. There is no LWT here. It will be divided
equally between them at 500k each for Juan and Pedro. But
since Juan is incapacitated, he will now be represented by
his children Arvin and Ryan and they will get 250K each,
while Pedro gets 500k. Don of course will not get any share
as he is excluded. We have Pedro who is the nearer heir to
the decedent.
If Juan renounces or repudiates (this is different from
incapacity) his share it will accrue to Pedro. The right of
representation shall not apply, because one of the basic
principles in the right of representation is that an heir who
repudiates cannot be represented. Thus, Juan cannot be
represented by Arvin and Ryan.
A person who repudiates an inheritance cannot be
represented. The right of representation, as we will discuss
in the subsequent articles, obtains only in case of
predecease, incapacity or disinheritance. When the right
exists, it shall take preference to the right of accretion.
Accretion takes place in testate or intestate succession as
regards only the free portion. And when the requisites for
accretion are present. In case of predecease, accretion does
not take place.
Art. 969. If the inheritance should be repudiated by the
nearest relative, should there be one only, or by all the
nearest relatives called by law to succeed, should there
be several, those of the following degree shall inherit in
their own right and cannot represent the person or
persons repudiating the inheritance.
This provision only refers to repudiation. It does not apply
in cases of incapacity, predecease or disinheritance.
The respective children will inherit in their own right. It is
no longer by virtue of right of representation. Based from
the example above if Juan and Pedro will repudiate their
share, their children will inherit in their own right so that
1M estate will be divided among them. Divided by 3.
Remember, we discussed before per capita, and per stirpes
– in this case wherein Juan and Pedro repudiated their
share. Their children inheriting in their own right, meaning,
equal sharing, they will inherit per capita.
NOTE:
• In their own right = per capita
• In their representation = per stirpes
REPRESENTATION
Art. 970. Representation is a right created by fiction of
law, by virtue of which the representative is raised to the
place and the degree of the person represented, and
acquires the rights which the latter would have if he
were living or if he could have inherited.
Representation takes place either testate or intestate
succession but they are applied in different ways.
The representative is raised to the place and degree of the
person represented and acquires the rights which the latter
would have if he were living or he could have inherited.
When can the right of representation apply?
1. In vacancies caused by predecease, incapacity, or
disinheritance.
a. Predecease – the heir dies ahead of the decedent.
b. Incapacity – the heir is disqualified to inherit under the
law
c. Disinheritance – the heir is validly disinherited but, he
can still be represented.
2. In testamentary succession, the right of representation
applies only to legitimes.
In legal or intestate succession, right of representation is
applied to the entire estate because there is no more free
portion.
In disinheritance, it applies only to testate succession
because there is a requirement that there should be a will.
In testate succession, representation is only as to the
legitime it only covers all that the person being represented
would have inherited., free portion is not included. But in
legal succession, the right of representation covers all that
the person being represented would have inherited.
In adoption, there is only a relationship between the adopter
and the adoptee. However, the adoptee cannot represent the
adopter. While the adoptee can inherit from the adopter, the
adoptee cannot represent the adopter. Neither can the
adopted child be represented.
NOTE: The right of representation covers not only the
properties, but also the transmissible rights and obligations.
Art. 971. The representative is called to the succession
by the law and not by the person represented.
The representative does not succeed the person
represented but the one whom the person represented
would have succeeded.
To reiterate, the representative does not inherit from the
person represented but from the person from whom the one
represented would have inherited.
Exceptions: 902 & 908
INTESTATE ESTATE OF ROSALES VS ROSALES
Irenea Rosales insisted in getting a share of the estate in
her capacity as the surviving spouse of the late Carterio
Rosales, son of the deceased, claiming that she is a
compulsory heir of her mother-in-law together with her
son, Macikequerox.
There is no provision in the Civil Code which states that
a widow (surviving spouse) is an intestate heir of her
motherin-law. The entire Code is devoid of any
provision which entitles her to inherit from her mother-
in- law either by her own right or by the right of
representation.
Indeed, the surviving spouse is considered a third person
as regards the estate of the parent-in-law.
Article 971 explicitly declares that Macikequerox
Rosales is called to succession by law because of his
blood relationship. He does not succeed his father,
Carterio Rosales (the person represented) who
predeceased his grandmother, Petra Rosales, but the
latter whom his father would have succeeded. Petitioner
cannot assert the same right of representation as she has
no filiation by blood with her mother-in-law.
iRght of her husband was extinguished by his death that
is why it is their son Macikequerox Rosales who
succeeded from Petra Rosales by right of representation.
He did not succeed from his deceased father, Carterio
Rosales.
A surviving spouse is not an intestate heir of his or her
parent-in-law.
MACIKEQUEROX does not succeed his father, Carterio
Rosales (the person represented) who predeceased his
grandmother, Petra Rosales, but Petra whom his father
would have succeeded. The mother here, Irenea, cannot
assert the same right of representation as she has no
filiation by blood with her mother-in-law.
Art. 972. The right of representation takes place in the
direct descending line, but never in the ascending.
In the collateral line, it takes place only in favor of the
children of brothers or sisters, whether they be of the
full or half blood.
In the collateral line, the right of representation takes place
only in favor of the children of brothers and sisters.
Meaning, nephews and nieces. (grandnephews and
grandnieces are not included)
Right of representation never takes place in the ascending
line. It only takes place in the descending line. The right of
representation always goes down. If you look for a
representative, go down.

Grand nephews and nieces like Don, cannot represent.
ONLY UP TO THE CHILDREN OF BROTHERS AND
SISTERS.
Art. 973. In order that representation may take place, it
is necessary that the representative himself be capable of
succeeding the decedent
The representative must have the capacity to succeed from
the decedent.
Art. 974. Whenever there is succession by
representation, the division of the estate shall be made
per stirpes, in such manner that the representative or
representatives shall not inherit more than what the
person they represent would inherit, if he were living or
could inherit.
STIRPES - Inheritance by all those within the group
inheriting in equal share.
Scenario: Juan predeceased the decedent, then he will be
represented by his children Arvin and Ryan. The
representative step into the shoes of Juan, the person being
represented. That also means that they cannot inherit more
than the person represented would have inherited.
Art. 975. When children of one or more brothers or
sisters of the deceased survive, they shall inherit from
the latter by representation, if they survive with their
uncles or aunts. But if they alone survive, they shall
inherit in equal portions.
Scenario:
Juan, Decedent, and Pedro were siblings.
If Juan predeceased his brother, Juan can be represented by
his children - Ryan and Arvin, who were the nephews of the
decedent.
The inheritance of Ryan and Arvin are by virtue of per
stirpes.
Examples of stirpes: If the estate is worth P1,000,000,
divided by 2 for Juan and Pedro – 500,000 each. So, Ryan
and Arvin will get 250,000 each. Don will not get anything
because Pedro is still alive.
But if Juan and Pedro predeceased the decedent. Upon his
death, he is survived by his nephews – Ryan, Arvin and
Don, they will now inherit in EQUAL shares, per capita.
That is now 1,000,000 divided by 3 as compared to the
previous one which was per stirpes. Take note of this one
because this is VERY SPECIFIC to nephews and nieces
with regard to the children of 1 or more brothers or sisters
of the deceased survived.
 BICOMONG VS ALMANSA thing. The effect of that is his son cannot represent Don in
the estate of Pedro.
In the absence of descendants, ascendants, illegitimate
An heir who repudiates, Don, may still represent the
children, or a surviving spouse, Article 1003 of the New
Civil Code provides that collateral relatives shall person, Pedro, whose inheritance he repudiated. But an heir
succeed to the entire estate of the deceased. It appearing who repudiates cannot be represented by his children.
that Maura Bagsic died intestate without an issue, and
her husband and all her ascendants had died ahead of Repudiation Disinheritance or
her, she is succeeded by the surviving collateral Incapacity
relatives, namely the daughter of her sister of full blood Voluntary act Involuntary act
and the ten (10) children of her brother and two (2) Effect: Heirs who Effect: Children of the
sisters of half blood, in accordance with the provision of repudiate their share may incapacitated or
Art. 975 of the New Civil Code. By virtue of the latter not be represented disinherited persons are
provision, the nephews and nieces are entitled to inherit not deprived of their right
in their own right. of representation. They
should not suffer from the
AbellanaBacayo vs. Ferraris-Borromeo circumstances out of their
control.
"nephews and nieces alone do not inherit by right of
representation (that is per stirpes) unless concurring with
brothers or sisters of the deceased." RESCISSION AND PARTITTION

Article 975 makes no qualification as to whether the
nephews or nieces are on the maternal or paternal line
and without preference as to whether their relationship
to the deceased is by whole or half blood, the sole niece
of whole blood of the deceased does not exclude the ten
nephews and nieces of half blood.
In this case, the decedent no longer had any brothers or
sisters. If there are concurring brothers or sisters of the
deceased, inheriting together with the nephews and nieces
by virtue of the right of representation, so, they will inherit
per stirpes.
Art. 1097. A partition may be
rescinded or annulled for the same
causes as contracts.
What are the grounds for Rescission? LESION.
What is the ground for annulment? Vitiated consent.
These include fraud, mistake, violence, undue
influence, etc.

Art. 976. A person may represent him whose inheritance

Art. 1098. A partition, judicial or
he has renounced. extra-judicial, may also be rescinded
on account of lesion, when any one of
Art. 977. Heirs who repudiate their share may not be the co-heirs received things whose
represented. value is less, by at least one-fourth,
than the share to which he is entitled,
considering the value of the things at
the time they were adjudicated.

Example the heir receives a share which is

valued less than ¼. Let us say the heir is entitled
to 100k but he only received 75k, there’s a
lesion in the amount of 25k so that’s at least ¼.
That can be partitioned.

Art. 1099. The partition made by the

Pertaining to the estate of the decedent, if Pedro
testator cannot be impugned on the
predeceased the decedent, Don can represent Pedro in the
estate of the Decedent even if Don repudiates his share in ground of lesion, except when the
the estate of Pedro. In the first scenario, Don is a legitime of the compulsory heirs is
representative of the decedent. This is okay. But if Don thereby prejudiced, or when it
would repudiate his inheritance from Pedro, that’s another appears or may reasonably be
 presumed, that the intention of the
testator was otherwise.
General Rule: Under Article 1098, a rescission
may be asked on the account of lesion, if there
is a reduction of at least ¼ of his share to which
he is entitled.
Exception: If the partition is made by the
testator himself even if the deduction is less
than ¼, the heir cannot ask for rescission.
Exception to the Exception:
The heir can still ask for rescission even if the
partition was made by the testator himself:
1. When the lesion affects the legitime of the
compulsory heirs
2. If it was the intent of the testator that his
partition to be rescinded in the case there is
lesion.
Art. 1100. The action for rescission on
account of lesion shall prescribe after
four years from the time the partition
was made.
Should be reckoned from the time the partition was made.
Art. 1101. The heir who is sued shall
have the option of indemnifying the
plaintiff for the loss, or consenting to
a new partition.
Indemnity may be made by payment
in cash or by the delivery of a thing of
the same kind and quality as that
awarded to the plaintiff.
If a new partition is made, it shall
affect neither those who have not
been prejudiced nor those have not
received more than their just share.
What are the consequences when there is
rescission due to lesion?
1. If an heir is prejudiced due to lesion, he
would be given the amount that is lacking to
complete his legitime. In other words, he will be
indemnified for the balance to complete the
legitime. OR
2. He can also have a new partition, but the
heirs whose shares are correct or are not
prejudiced will no longer be included in the new
partition as provided under Article 1101
Art. 1102. An heir who has alienated
the whole or a considerable part of
the real property adjudicated to him
cannot maintain an action for
rescission on the ground of lesion, but
he shall have a right to be indemnified
in cash.
The heir can no longer return the property
adjudicated to him, so he cannot have a new
partition. It would be unfair to the others. What
he can do is to indemnify in cash the balance
amount of what is supposed to be due him.
Art. 1103. The omission of one or
more objects or securities of the
inheritance shall not cause the
rescission of the partition on the
ground of lesion, but the partition
shall be completed by the distribution
of the objects or securities which have
been omitted.
“Preterition on the Objects in the partition”
The omission of one or more object is not a
ground of partition.
There is no new partition.
What needs to be done is just to partition those
objects that weren’t included in the prior
partition.
Art. 1104. A partition made with
preterition of any of the compulsory
heirs shall not be rescinded, unless it
be proved that there was bad faith or
fraud on the part of the other persons
interested; but the latter shall be
 proportionately obliged to pay to the
person omitted the share which
belongs to him.
Art 1104 Art 854
Preterition not in the Preterition in the will.
will but in the
partition
Article 1104 speaks of preterition not in the will
but in the partition. So there’s a compulsory heir
that was not included in the partition.
GENERAL RULE: Preterition here will not cause
rescission of the partition.
EXCEPTION: If proved that there was bad faith
or fraud on the part of the persons interested.
They purposely did not include one of the
compulsory heirs in the partition. If such is
present then the partition can be rescinded.
REILLO VS SAN JOSE
It was clear that there was preterition in this
case because the petitioners Zosimo and his
children executed an extrajudicial settlement
without the knowledge and consent of all the
other surviving heirs of the deceased spouses
Quiterio San Jose and Antonina Espiritu
Santo.
They misrepresented themselves as the sole
heirs of the spouses when in fact there are
other children of the spouses who are
Galicano, Victoria, and Catalina.
The Court held that a deed of extrajudicial
partition executed without including some of
the heirs, who had no knowledge of and
consent to the same, is fraudulent and
vicious. The deed of settlement made by
petitioners was invalid because it excluded
respondents who were entitled to equal
shares in the subject property.
Under the rule, no extrajudicial settlement
shall be binding upon any person who has not
participated therein or had no notice thereof.
NON VS CA
The exclusion of petitioner Delia Viado,
alleged to be a retardate, from the deed of
extrajudicial settlement verily has had the
effect of preterition. This kind of preterition,
however, in the absence of proof of fraud and
bad faith, does not justify a collateral attack
on Transfer Certificate of Title No. 373646.
The relief, as so correctly pointed out by the
Court of Appeals, instead rests on Article
1104 of the Civil Code to the effect that
where the preterition is not attended by bad
faith and fraud, the partition shall not be
rescinded but the preterited heir shall be paid
the value of the share pertaining to her.
Again, the appellate court has thus acted
properly in ordering the remand of the case
for further proceedings to make the proper
valuation of the isarog property and
ascertainment of the amount due petitioner
Delia Viado.
Art. 1105. A partition which includes a
person believed to be an heir, but who
is not, shall be void only with respect
to such person.
Under this provision, there is a person who is not an heir
but was included in the partition.
Art 1104 Art 1105
A person who must A person who is not an
be included but not heir but he is
included; included in the
partition
The partition pertaining to that person is invalid.
An action to annul the extrajudicial partition
which involve a person who is not an heir is
imprescriptible or does not prescribe.

LANDAYAN VS BACANI
Maxima Andrada, the surviving spouse of
Teodoro Abenojar, and Severino Abenojar,
executed a public document, entitled
"ExtraJudicial Agreement of Partition"
whereby they adjudicated between
themselves the properties left by Teodoro
Abenojar. Severino Abenojar represented
himself in said document as "the only forced
heir and descendant" of the late Teodoro
Abenojar.
Maria, Segundo, Marcial and Lucio, all
surnamed LANDAYAN alleged that they are
the legitimate children of Guillerma Abenojar,
then already deceased, who was the only
child of Teodoro Abenojar with his first wife
named Florencia Bautista and that , he did
not have any offspring in any of the said
second and third marriages.
It could be gathered from the pleadings filed
by the petitioners that they do not seek the
nullification of the entire deed of extra-
judicial partition but only insofar as the same
deprived them of their shares in the
inheritance from the estate of Teodoro
Abenojar. Should it be proved, therefore, that
Severino Abenojar is, indeed, not a legal heir
of Teodoro Abenojar, the portion of the deed
of extrajudicial partition adjudicating certain
properties of Teodoro Abenojar in his favor
shall be deemed inexistent and void from the
beginning in accordance with Articles 1409,
par. (7) and 1105 of the Civil Code. By the
express provision of Article 1410 of the Civil
Code, the action to seek a declaration of the
nullity of the same does not prescribe
AZNAR BROTHERS VS CA
There was an allegation that there were heirs
who did not participate in the extrajudicial
partition and there are also persons who
participated therein who were heirs of the
deceased. Still as a general rule, these are not
grounds to rescind or consider the said
partition as void.
Applying Article 1104, a partition made with
preterition of any of the compulsory heirs
shall not be rescinded unless there is bad
faith or fraud. Wherein in this case there was
no evidence of such bad faith or fraud and
then as to the two parties who were allegedly
not heirs, we have Article 1105, wherein it
shall be void only with respect to such
persons. In other words, the partition of non-
heirs does not render the partition void in its
entirety but only to the extent corresponding
to these nonheirs.
EMILIANA BAUTISTA VS HON. CAROLINA
The said partition also effectively resulted in
the preterition of the right of Evangeline
Bautista as a compulsory heir of Manuel
Bautista, daughter of the latter by his second
marriage. It is difficult to believe that Manuel
Bautista would wittingly overlook and ignore
the right of her daughter Evangeline to share
in the said property. It is not surprising that
he denied signing the said document.
Moreover, the other Bautistas knew
Evangeline Bautista who is their half-sister to
be a compulsory heir. The court finds that her
preterition was attended with bad faith hence
the said partition must be rescinded.
Article 1104 provides that a partition made
with preterition of any of the compulsory
heirs shall not be rescinded, unless it be
proved that there was bad faith or fraud on
the part of the other persons interested; but
the latter shall be proportionately obliged to
pay to the person omitted the share which
belongs to him.
If we consider that partition in connection to
Manuel’s estate, there is bad faith because
the person who executed has knowledge that
they still have a half-sister which is
Evangeline. With that, the partition will be
rescinded.
If the property does not belong to the estate
of the decedent, then it cannot be subject to
an extrajudicial partition.

With regard to Juliana, that deed of

extrajudicial partition is void ab initio because
it does not belong to her. Again, to include in
an extrajudicial partition, property which
does not pertain to the deceased would
deprive the lawful owner thereof.

Only the property of the estate of the

decedent which is transmitted by succession
can be the lawful subject matter of an
extrajudicial partition.